Estephan v Lynsey Finch and Ors

CATCHWORDS: Fatal collision between a stationwagon and a tip truck towing a trailer at an intersection (modified T intersection) at Rossmore in Liverpool local government area - Six actions arising from this collision were heard together on question of liability - Ultimate issues were whether the driver of the tip truck and trailer (F) was negligent, whether the driver of the stationwagon (JE) was negligent and whether the local government body (LCC), the applicable road authority were negligent and, if more than one were negligent, apportionment of liability - Lengthy consideration of the history of the intersection - Lengthy reconstruction of and consideration of the collision - Consideration of the applicable speed limit at [14] to [29] - Australian Road Rules 21 and 25 and definition of "built-up area" - Immediate causes of the collision were held to be: (a) JE knew she had right of way at the intersection which she exercised by making a right hand turn. (b) F erroneously believed that he had right of way. (c) only when F perceived that JE was not going to yield way to him and was going to turn right across the path of F's truck did he apply his footbrake, braking hard enough to seek to avoid the collision. (d) when JE's stationwagon emerged on F's left, F tried to turn or veer right to avoid it, had he continued on a straight path or attempted to veer to the left, the collision would have been avoided - Lengthy consideration of lay and expert evidence concerning speed of F's truck. A number of experts assessed his initial speed as in excess of 90kph in an area where 60kph limit applied. Held F was driving at about 70kph when he first perceived the lights of JE's vehicle - Held: (1) F was negligent: (a) he failed to keep a proper lookout. He ought to have observed and heeded a modified T intersection warning sign. (b) he failed to keep left by steering his truck into the right side of the carriageway. (2) F was not negligent in driving at 70kph in 60kph zone because of confusion about the speed limit and the difficulty of determining whether this was a "built-up area" and matters considered between [14] and [29]. Breach of a road rule is not itself negligence: Tucker v McCann [1948] VLR 222 at 227, Brulhart v Jarman [1964] NSWR 1210. The effective cause of the collision was not speed but F's lack of awareness of the altered priority of the T intersection. (3) JE was not negligent. This was a classic case of an "agony of the moment" decision. Fleming, The Law of Torts, 9th ed. (1998) p 319. (4) LCC was negligent as a Give Way sign ought to have been erected at the intersection facing traffic approaching it in the direction F did, as (a) the modified T intersection sign was possibly ambiguous. (b) that sign could be misinterpreted. (c) this had been requested on a number of occassions since 1992 by neighbouring residents and by a local councillor in 1998. (d) had been proper road engineering practice since 1994, and alterations had been made to the intersection in 1996 and 1998. Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214. (5) Liability apportioned 20 per cent to F and 80 per cent to LCC. Brodie v Singleton Shire Council (2001) 206 CLR 512 at 580, Liverpool City Council v Millet [2004] NSWCA 340 - 34 MVR 193. Argument that in an apportionment the Court should consider questions arising from different measures of damages rejected. Law Reform (Miscellaneous Provisions) Act 1946 s 5, Law Reform (Miscellaneous Provisions) Act 1965 s 9, Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 68, Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, Josyln v Berryman [2003] HCA 34 at [124] - [128]

Motor Accidents Compensation Act 1999 Law Reform (Miscellaneous Provisions) Act 1946 LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1965 Roads Act 1993 Civil Liability Act 2002 Australian Road Rules

Tucker v McCann [1948] VLR 222 Brulhart v Jarman [1964] NSWR 1210 Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 CASES CITED: Brodie v Singleton Shire Council (2001) 206 CLR 512 Liverpool City Council v Millet [2004] NSWCA 340; 34 MVR 193 Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Josyln v Berryman [2003] HCA 34

Matter: 1042/04 Plaintiff: Estephan Estephan First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council

Matter: 2124/04 Plaintiff: Charlene Estephan by her tutor Estephan Estephan First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council

Matter: 2125/04 Plaintiff: Joanne Estephan by her tutor Estephan Estephan First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd PARTIES: Third Defendant: Liverpool City Council

Matter: 2126/04 Plaintiff: Joseph Azzi First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council

Matter: 2127/04 Plaintiff: Mary Azzi First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council

Matter: 3797/04 Plaintiff: Lynsey Finch Defendant: Liverpool City Council

FILE NUMBER(S): 1042/04; 2124/04; 2125/04; 2126/04; 2127/04; 3797/04

Mr P. Semmler QC and Mr C. Thompson appeared for the plaintiffs in the first 5 matters. Mr J. Heazlewood appeared for Mr Finch as plaintiff. COUNSEL: Mr R.R. Stitt QC and Mr H.W. Stitt appeared for Mr Finch as defendant and also for Rocks Excavations and Plant Hire Pty Ltd, by right of subrogation. Mr M. Windsor appeared for Liverpool City Council. Mr D.J. Russell SC appeared for Mr Estephan as executor of the estate of Mrs Estephan, by right of subrogation.

Carrol and O'Dea for the plaintiffs in the first five matters. Michael Jokovic and Associates for the plaintiff in the sixth matter. SOLICITORS: Sparke Helmore for the first and second defendants in the first five matters. McCabe Terrill for Liverpool City Council. TL Lawyers for the estate of the late Jocelyn Estephan.

1 The matter named above is one of six actions that are currently before me. Those matters were heard together and the evidence in one case is evidence in each of the others. All six actions arise out of one tragic event: the collision between a tipper truck towing a trailer, driven by Mr Finch, and a Ford Falcon stationwagon, driven by Mrs Jocelyn Estephan, at the intersection of King Street and Devonshire Road, Rossmore in the Liverpool City Council local government area on 25 May 2001 at approximately 5.55p.m. Mrs Estephan (who turned 32 years of age that day) and her son Steven Estephan (aged 8 or 9 years), a passenger of the Ford Falcon stationwagon, were killed and Mrs Estephan's two daughters, Charlene (aged 12) and Joanne (aged 4), other passengers in the stationwagon, were critically injured. The matters are before for me for the determination of liability only. The ultimate issues are whether Mr Finch was negligent; whether Liverpool City Council was negligent; whether Mrs Estephan was negligent; and, if more than one person were negligent, as to how liability ought be apportioned between them.

2.1 Matter: 1042/04 Plaintiff: Estephan Estephan First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council

The plaintiff is the widower of the late Mrs Estephan. This claim is made under the Motor Accidents Compensation Act 1999, section 113(1) and under the Compensation to Relatives Act 1897. The plaintiff makes the latter claim on his own behalf and on behalf of his two surviving children, Charlene and Joanne. The second defendant is the owner of the vehicle being driven by Mr Finch. Each defendant seeks contribution from the other, and in addition, the Liverpool City Council seeks contribution from Estephan Estephan as executor of the estate of Mrs Estephan.

2.2 Matter: 2124/04 Plaintiff: Charlene Estephan by her tutor Estephan Estephan First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council

This is Charlene's claim for personal injury. The cross-claims are as in the first matter.

2.3 Matter: 2125/04 Plaintiff: Joanne Estephan by her tutor Estephan Estephan First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council

This is Joanne's claim for personal injury. The cross-claims are as in the first matter.

2.4 Matter: 2126/04 Plaintiff: Joseph Azzi First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council

Mr Azzi is the father of the late Mrs Estephan. His claim is for "nervous shock." The cross-claims are as in the first matter.

2.5 Matter: 2127/04 Plaintiff: Mary Azzi First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council

Mrs Azzi is the mother of the late Mrs Estephan. Her claim is for "nervous shock." The cross-claims are as in the first matter.

2.6 Matter: 3797/04 Plaintiff: Lynsey Finch Defendant: Liverpool City Council

This is Mr Finch's claim for psychological injury. The defendant has made a cross-claim against Estephan Estephan as executor of the estate of the late Mrs Estephan.

3 As Mr Estephan has three roles in this litigation (plaintiff, tutor and executor of Mrs Estephan's estate) and as Mr Finch has two roles (defendant and plaintiff) note must be made of the appearances: 1. Mr P. Semmler QC and Mr C. Thompson appeared for the plaintiffs in the first 5 matters; 2. Mr J. Heazlewood appeared for Mr Finch as plaintiff; 3. Mr R.R. Stitt QC and Mr H.W. Stitt appeared for Mr Finch as defendant and also for Rocks Excavations and Plant Hire Pty Ltd, by right of subrogation; 4. Mr M. Windsor appeared for Liverpool City Council; 5. Mr D.J. Russell SC appeared for Mr Estephan as executor of the estate of Mrs Estephan, by right of subrogation.

4 The southern end of King Street commences at Bringelly Road, at Rossmore. Bringelly Road is described as a main traffic route, running east - west from Camden Valley Way to The Northern Road at Bringelly. King Street runs south - north but ends before it reaches Twelfth Avenue. It is a "no through road". The last intersection on King Street is with Devonshire Road. That intersection is, geometrically, a T intersection, with Devonshire Road being the stem of the T. This intersection is the southern end of Devonshire Road. It joins King Street on the western side of King Street. Devonshire Road runs westward from King Street for 230m and then turns to head northward. It then runs north to Elizabeth Drive at Kemps Creek, where it ends. Elizabeth Drive is a main traffic route running east - west, from Liverpool to The Northern Road at Luddenham. By following King Street north to its intersection with Devonshire Road and then Devonshire Road, a motorist can travel between Bringelly Road and Elizabeth Drive and the same route may be followed in the opposite direction. Street directories mark this route as an "alternative traffic route" and Mr J.W. Gill of the Roads and Traffic Authority of New South Wales ("RTA") described King Street and Devonshire Road as "regional roads."

"(1) The RTA is the roads authority for all freeways.

(2) The Minister is the roads authority for all Crown roads.

(3) The regulations may declare that a specified public authority is the roads authority for a public road, or for all public roads within a specified area, other than any freeway or Crown road.

(4) The council of a local government area is the roads authority for all public roads within the area other than: (a) any freeway or Crown road, and (b) any public road for which some other public authority is declared by the regulations to be the roads authority.

(5) A roads authority has such functions as are conferred on it by or under this or any other Act or law."

6 Sections 145 and 146 of the same Act provide: "145 Roads authorities own public roads

(1) All freeways are vested in fee simple in the RTA.

(2) All Crown roads are vested in fee simple in the Crown as Crown land.

(3) All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority.

(4) All public roads outside a local government area (other than freeways and Crown roads) are vested in fee simple in the Crown as Crown land. 146 Nature of ownership of public roads

(1) Except as otherwise provided by this Act, the dedication of land as a public road: (a) does not impose any liability on the owner of the road that the owner would not have if the owner were merely a person having the care, control and management of the road, and (b) does not affect the rights or liabilities of any person under any easement or under any Act or law, and (c) does not affect any rights of any person with respect to minerals below the surface of the road, and (d) does not constitute the owner of the road as an occupier of the land, and (e) does not authorise the owner of the road to dispose of any interest (other than easement or covenant) in the land, and (f) does not prevent any lands that were previously considered to be adjoining lands for the purposes of the Land Acquisition (Just Terms Compensation) Act 1991 from continuing to be so considered.

(2) This section does not restrict the power of a roads authority to regulate the digging up of public roads pursuant to the provisions of any other Act."

7 It can be seen, therefore, that the relevant roads authority has the liability of a person having the care, control and management of a road.

8 It was only on the morning of the seventh day of hearing that the Liverpool City Council ("LCC") admitted that the two roads were "local roads" for which it was responsible and that that responsibility extended to the intersection of the two roads. This was an extremely belated admission. On 13 May 2004 Messrs Carroll and O'Dea (for the first five plaintiffs) wrote to the RTA a letter, the relevant portion of which is: "we request that you urgently advise us whether the Roads and Traffic Authority was in any way responsible for the following prior to 25 May 2001: -

1. the installation of and changes to the signage on King Street and Devonshire Road in Rossmore; 2. the line markings on King Street and Devonshire Road, Rossmore; 3. the installation and maintenance of street lighting along the abovementioned roads; 4. the installation of traffic signals at the intersection of King Street and Devonshire Road, Rossmore; and 5. modifications, repairs, design and maintenance of Devonshire Road and King Street in Rossmore."

9 The reply from the RTA, under the hand of the General Manager of its Legal Branch, was: "I refer to your letter dated 13 May 2004 in relation to the subject matter and advise that the Roads and Traffic Authority of NSW (RTA) isn't responsible for any of the points mentioned. The RTA would be responsible for the maintenance of traffic signals, however there are no traffic signals at the intersection of King Street and Devonshire Road, Rossmore. The roads in question are under the care and control of Liverpool City Council, so accordingly Council may have the information sought."

10 The other parties, and the Court, had been pressing the LCC to make this admission from the first day of the hearing. Owing to the dilatory behaviour of LCC, Mr Semmler QC made arrangements to call witnesses from the RTA to establish that fact. Those witnesses were to be called on the seventh day of the hearing, and they were, as they also established other matters. Mr J.W. Gill, Council Liaison Regional Projects Manager, and Mr N. Forrest, Sydney Assets Manager, both gave evidence that the body responsible for "regional roads" was the Local Council, in the present matter, LCC.

11 Even if the relevant powers and obligations are not imposed on LCC as the roads authority by the Roads Act 1993 or other Act of Parliament, they have been delegated by the RTA to the LCC: Exhibit EE. A Council is permitted to sub-delegate its powers to a councillor, its general manager or any employee of the Council. Ultimately, no submission was made by LCC that it did not have either the power or responsibility to do what the other parties suggested it ought to have done.

12 During the hearing attempts were made by LCC to attribute responsibility for the intersection in question to the RTA and to absolve itself from responsibility by relying on the involvement and greater expertise of the RTA in the decision-making process. Ultimately, those arguments were not advanced in submissions by LCC but, in light of the evidence adduced, I ought record what it establishes.

(a) Funding The State Treasury (perhaps from Parliamentary appropriation or perhaps from Federal grants) allocates to the RTA money to assist Local Government Councils to manage and maintain "regional roads." This was referred to as a "block grant." Two components of it are exclusively for regional roads. One of those components is the "traffic facilities" component which enables Local Councils to install and maintain signs on regional roads. Councils are not obliged to take the block grant. Thirty-one Local Councils do take it, nine do not. LCC is one of the nine. If a Council takes the grant it must install "lines and signs" itself, either by the Council's own work gangs or by a contractor. If a Council does not take the grant, it asks the RTA to do the work. The RTA finances such work out of the unallocated grant money. According to Mr Gill, many Councils take the grant because it enables them to do the work more quickly and often those Councils believe they can do a better job than the RTA. On the other hand, Councils which do not take the block grant have the opportunity, if they act quickly, to have more work done by the RTA than they might do themselves because the total of the block grants unallocated is available. However, in Mr Gill's experience, over the 4 financial years preceding 14 March 2006, there was "a surplus of funds" indicating that the nine Councils which did not take the block grant were not using all the funds collectively available to them.

(b) Performance of Work For a Council such as LCC, work on its regional roads is done by the RTA but the evidence establishes that the RTA work gang is merely working as if it were a contractor to the Council. When a relevant decision has been made by a Council, a form, RTA Form 337 is completed and forwarded to the RTA. The form requires the relevant approval to be stated on it. The RTA then does the work "as a contractor" (Transcript 419.43). When asked to explain what he meant by that, Mr Gill continued: "A. The RTA has been instructed to do some work on this form. It's got the plans, the details, exactly where things are to go. The RTA would not put in something which was contrary to what was on this plan. That's what I'm saying. Q. They simply follow the plan? A. We simply follow the plan in accordance with these instructions. Q. Does the RTA bill the council for the work? A. This work is done by our works depot in Yennora. The Yennora office bills our office. It has a purchase order, you might say; - an internal purchase order - where monies is transferred from one section to another section. Q. Does the council ever get a bill for that work that's done? A. Never."

It became very clear that once approval of the work to be done had been given by a Council that no further scrutiny of it was made by the RTA.

(c) Traffic Committee Each local government area has a Traffic Committee. The evidence suggests that this may have been adopted at the instigation of the RTA but that is only of historical interest. Exhibit 12 is a Report and Recommendation to LCC, which recommendations were adopted by LCC with one amendment on 14 December 1992. The background of this report is to divide functions between the Traffic Committee and the "Traffic and Parking Department" of the Council. Functions assigned to the Department need not go before the Traffic Committee and could be approved by the Council under delegated authority. Some decisions made under delegated authority might have to receive the approval of the Police and RTA members of the Traffic Committee.

According to Exhibit 12, the "formal members" of the Traffic Committee, those entitled to vote, were: all councillors, the Traffic and Parking Manager (a Council employee), a representative from the Chamber of Commerce, representatives of the Police, the Department of Transport and RTA and local members of Parliament. The recommendation divided functions between two Schedules. One recommendation adopted was that the Traffic and Parking Manager be granted delegated authority to approve such matters referred to as Schedule 2 items. Schedule 2 items included: s Stop/Give Way signs s Regulatory Line-marking s Street Lighting The arguments of the LCC were eventually abandoned when it became clear that the relevant decision was made by a Council employee under delegated authority and no evidence was adduced that the relevant decision had been referred to either the RTA or the Police.

13.1 As I have already pointed out, the intersection, as initially formed, was a classic T intersection, with traffic in King Street having right of way over traffic turning out of Devonshire Road.

13.2 Correspondence from LCC to Prospect Electricity dated 23 September 1991 led to street lights being installed on the western side of King Street as far as Devonshire Road (Exhibit M, p.31).

13.3 About 5.15pm on 26 May 1992, the son of Mrs D. Nicholls of Rossmore was involved in "a serious accident" at the intersection. He was travelling north along King Street towards its end and collided with a car "travelling on Devonshire Road, which failed to give way before attempting a right hand turn" into King Street. Mrs Nicholls wrote to the LCC on the following day, a letter which it received on 28 May 1992. The letter contained this request: "I am requesting that a give way sign be erected on this corner and would ask that sincere consideration be given to this request as soon as possible to perhaps help prevent further such incidents."

LCC replied on 9 June 1992 that "(t)his matter is being investigated and you will be advised of the outcome in due course." There is no evidence of any such investigation or of any further advice to Mrs Nicholls. The mechanism of this collision is the same mechanism as that of the collision with which I am dealing. It occurred nine years later.

13.4 Western Road, Kemps Creek runs parallel to Devonshire Road between Fifteenth Avenue (southern end) and Elizabeth Drive (northern end). Western and Devonshire Roads are approximately one kilometre apart, Devonshire Road being the more easterly. At a Council meeting on 21 December 1993, one councillor asked whether any traffic counts had been made on Western Road for heavy traffic. He reported that trucks were speeding. It appears that concerns about an increase in heavy vehicle traffic were raised with the local member of Parliament by the Kemps Creek Precinct Committee. The local member wrote to the RTA and received a reply dated 14 February 1994: "I refer to your letter in relation to conversations expressed by the Kemps Creek Precinct Committee over an increase in heavy vehicular traffic on Western Road, Kemps Creek. As part of its commitment to the community to monitor road user performance and the promotion of safe and efficient use of the road network, the Authority conducts Mobile Vehicle Testing of vehicles in the Kemps Creek area. Investigations reveal that while Devonshire Road is the preferred route to access the two waste tips north of Elizabeth Drive, Western Road is being used by trucks to get to that destination avoiding Devonshire Road which is being patrolled by the Authority's Inspectors. Both Devonshire and Western Roads are local roads looked after by Liverpool Council. However, in view of the concerns expressed, the Authority will raise the matter through its representative at the next meeting of the Council's Traffic Committee. The Authority will propose that a 3 tonne load limit be placed on Western Road, and Devonshire Road be signposted as the access road to the tip."

Traffic surveys were carried out on both Western and Devonshire Roads between 17 and 27 June 1994.

For Devonshire Road, the following data can be noted: Average Daily Traffic: 4461 v.p.d (vehicles per day) South-bound Traffic: 2239 v.p.d 85th Percentile Speed: 78 kph Speed Range up to 60: 797 v.p.d - 17.87% Speed Range 61 to 70: 1580 v.p.d - 35.52% Speed Range 71 to 80: 1546 v.p.d - 34.64% Speed Range 81 to 90: 450 v.p.d - 10.08%

Light Vehicles: 3924 v.p.d Trucks 2 or more axles: 538 v.p.d North-bound Trucks 3 or more axles: 288 v.p.d South-bound

The data for Western Road shows lower usage: Average Daily Traffic: 1491 v.p.d South-bound Traffic: 729 v.p.d 85th Percentile Speed: 80 kph

Light Vehicles: 1335 v.p.d Trucks 2 or more axles: 156 v.p.d North-bound Trucks 3 or more axles: 84 v.p.d South-bound

Armed with this information, LCC wrote to the local member on 21 September 1994: "Council has carried out vehicle classification counts on both roads, which have demonstrated a high level of usage by heavy vehicles on both roads, Devonshire Road (12%), Western Road (10.5%). Levels of this magnitude are not acceptable generally, unless the road in question is designated arterial or sub-arterial. In this instance Council will consider the imposition of a light load limit on Western Road at the October Traffic Committee, thereby diverting heavy vehicle traffic to Devonshire Road which is the more appropriate of the two."

The Traffic Committee recommended the imposition of the light load limit on Western Road on 5 October 1994 and that was adopted by LCC on 10 October 1994. Notations in Exhibit 19 indicate that the appropriate signs were erected later in that month.

Mr Stitt QC argued that King Street / Devonshire Road was a "heavy traffic route." Technically that is not so - Western Road was a "light traffic route." However, the volume of traffic recorded in the northern section of Devonshire Road, which must have increased after the light load limit was imposed on Western Road, gives some indication of what traffic may have passed along the Devonshire Road South / King Street route and is consistent with other evidence of the use of the southern section by heavy traffic.

13.5 New street lighting appears to have been installed along King Street in mid 1996. An Integral Energy lighting plan annexed to Exhibit M is dated 31 May 1996. For King Street south of the intersection the new plan suggests a luminaire on every second power pole, but with greater lighting on the two bends on the southern part of King Street near to Bringelly Road. North of Devonshire Road it required the one existing luminaire to be replaced and proposed an additional two luminaires. The existing luminaire had been installed shortly after 24 January 1992. However, other evidence strongly suggests that no additional lighting in the last section of King Street was added at this time.

13.6 On 31 October 1996, Mrs Vincenza Camilleri wrote the following letter to LCC (omitting the opening formalities and Mrs Camilleri's contact details in the last paragraph): "I am writing with regard to the T intersection on the corner of King Street and Devonshire Road, Rossmore. There are no 'Give Way' or 'Stop' signs at this Point, and even though road rules exist, it appears drivers who proceed to turn right from Devonshire Road onto King Street are 'assuming' that there is no traffic alighting to and from the 'No Through Road' end of King Street. Although there are approximately 5 properties on this dirt road Section, traffic flows constantly through this area, and I believe there is great cause for concern. I, and the residents of 'King Street No Through Road section' would be pleased if your Department could install 'Give Way' signs at this intersection, before an horrific accident occurs."

13.7 On 25 November 1996, Mr Rajen Kumar, an employee of LCC, prepared a "Sketch of Proposed Sign" to be erected at the intersection. It proposed a holding line across King Street, north of Devonshire Road and the erection of one give way sign facing traffic travelling south along King Street. This was attached to a Council decision made on the same day by Mr Victor Lim, a traffic-planning engineer, another employee of the Council, under delegated authority. The "Comment" contained in the Council decision is this: "The provision of 'Give Way' restrictions and associated line-marking for the 'No Through Road' section of King Street is required to formalise the intersection priority. Major arms of this T intersection are King Street and Devonshire Road where most traffic flows."

The decision was forwarded to the RTA which gave its concurrence on 26 November 1996, and to the Police who gave their concurrence on 27 November. Form 337 was prepared on 28 January 1997 and bears a notation that the work was completed on 22 April 1997, nearly six months after Mrs Camilleri's request for action.

With the benefit of hindsight, although one would hope with the benefit of prescience, one can see that this decision did not solve the problem originally raised by Mrs Nicholls in 1992 or all the difficulties to which Mrs Camilleri may have been adverting: it failed to solve priority for traffic travelling north along King Street. North-bound traffic, which wished to proceed into the "dead end", still had priority over traffic turning right out of Devonshire Road.

13.8 At the ordinary meeting of the LCC held on 14 April 1998, Councillor Harrington posed the following question: "Asked can a 'Give Way' sign be placed at the intersection of King Street and Devonshire Road, Rossmore as there has been a lot of near misses caused by cars going straight through towards the unsealed end of King Street, travelling north."

That question was referred to the "Corporate Manager Transport" for attention. (Titles for Council employees / officers appear to have constantly changed). Over three months later, Councillor Harrington was sent this memorandum (dated 20 July 1998) by Mr R Kennedy, "Transport Network Facilities Manager":

"I refer to your Question Without Notice at Council's Ordinary Meeting of 14 April 1998 regarding the above intersection. Please accept my apology for the delay of this response. King Street (north of Devonshire Road), is already controlled by 'Give Way' signs and markings. However, motorists travelling north along King Street toward Devonshire Road are not advised which movements have priority. The potential for collision at this intersection is apparent. To assist motorists in determining which movements have priority, centrelines, raised reflective pavement markers and advanced warning signs will be installed along Devonshire Road and King Street. A sketch showing the proposed treatment has been attached. It is anticipated that this work will be completed within two months."

This memorandum was accompanied by a computer generated sketch plan (Exhibit P) which exaggerates the extent of the curve for vehicles turning left from King into Devonshire and contains an error which is also contained in the memorandum: it shows give way signs on both the western and eastern sides of King Street north, when there was only one on the eastern side. The "advanced warning signs" proposed were modified T intersection signs, showing a T intersection but with the limbs of the route having priority marked more widely than the limb without priority. These signs are only warning signs, not regulatory signs. To regulate traffic a double unbroken centre line, going from King Street left into Devonshire Road was proposed, but with a large opening in it, allowing traffic into the dead end section of King Street to make a theoretical but fictional right hand turn. No regulatory sign was proposed, such as the give way sign suggested by Councillor Harrington in his question.

On 8 October 1998, a "Sketch of Proposed Signposting, Kemps Creek" was prepared by a Council employee to accompany Form 337 to go to the RTA. The Sketch bears the initials "R.K" which could be those of Mr R Kennedy but are more likely to be those of Mr Rajen Kumar. This Sketch continues the error I pointed to when discussing Exhibit P. It proposed that the advanced warning signs be erected 80 metres from the intersection on each of King Street south and Devonshire Road. A double white barrier line (DWBL) with round reflective pavement markers (RRPM) type YY at each 6 metre length was to be provided commencing 30 metres south of the intersection on King Street south and 30 metres west of the intersection on Devonshire Road. Only over the last six-metre section of DWBL in King Street was it to curve to the left. The curve in Devonshire Road is drawn over the last two six-metre sections.

On 22 October 1998 Mr Rajen Kumar forwarded a Form 337 to the RTA for the completion of his work. That form states that the relevant decision was made by "delegated authority." In Interrogatories which became Exhibit W, LCC admitted that the decision was made by Delegated Authority but was unable to state who exercised the delegated authority. According to the Interrogatories, the decision was confirmed by a subsequent meeting of LCC. There is no evidence that LCC or its delegate sought the concurrence of either the Police or the RTA. The work was completed by the RTA on 4 December 1998, some five and a half months after Councillor Harrington was told that it would be "completed in two months."

13.9 Collision 19 May 1999 This collision occurred at approximately 10.40pm. George Osman was driving an Isuzu 2 tonne truck, in the last section of Devonshire Road, towards its intersection with King Street. He was travelling at about 20 kph and slowed to turn right into King Street. He saw a Mitsubishi Magna approaching on his right, travelling north along King Street. Mr Osman told the attending Police that he believed he had right of way and proceeded with his turn. Mr Graham Hodson was driving the Mitsubishi Magna. About 20 metres from the intersection he was travelling at 55 kph. He told the Police that he was unfamiliar with the intersection and believed that King Street continued past Devonshire Road. Mr Hodson saw that the Isuzu had its right hand indicator on. As the Isuzu turned right into King Street Mr Hodson applied his breaks but was unable to stop to avoid the collision.The attending Police thought that Mr Osman was at fault and issued a Traffic Infringement Notice for "not giving way at a terminating street." The attempt by LCC to regulate priority at this intersection eluded the attending Police, two senior constables. RTA records indicate that both vehicles had to be towed away.

13.10 Collision 8 September 1999 This collision occurred at approximately 5.20pm. Mr Pei Ting Cai was driving a Honda Civic along Devonshire Road heading towards the intersection. Mr Dennis Pittman was driving a small Mitsubishi truck north along King Street. I shall take the narrative from the COPS entry E 7189076, correcting grammatical and spelling errors and amending it to make it more intelligible: "[Cai] slowed to a speed of 40 - 45 kph as he approached the intersection. [He] saw the truck and stated that [it] was turning left. He then began to make a right hand turn. As he pulled out the truck and car have collided. [Pittman] … stated that he would always turn [left] into Devonshire, however he received a phone call. The hands-free was not working so [he] went straight ahead. He had his hand ready to put on his indicator. He continued through the intersection when [the Honda] pulled out and the two vehicles collided. The north section of King Street from the intersection is [a] no through road. It is possible that due to [Pittman's] pulling over to talk on the phone [that] [Cai] may have thought that he was turning the corner. [Cai] could not be sure whether the indicator of [the truck] was on. However he states the truck was turning. There was no independent [witness] to the accident. The truck was moved from the intersection before police arrived and was being inspected by the RTA. [Cai] had already been conveyed to Liverpool Hospital where he was treated for cuts to his head. There is no give way or stop [sign] for traffic turning right into King. There [are] lines marked out for traffic to turn right[.] This line [goes] into King Street. There is [a] give way [sign] on the north side (terminated street section) of King Street for traffic entering the intersection. However there is no [sign] stating that traffic heading north on King Street must give way or turn [left]. At the scene four [members of the] Highway Patrol were asked who would be at fault due to the road markings. Two stated [Cai] and two stated [Pittman]. Due to lack of evidence at the scene, the conflicting statements and the road markings at the intersection, no action will be taken unless advised [by] the Traffic Supervisor."

On this occasion, the attempt by LCC to regulate priority at this intersection did not elude the attending Police, it merely befuddled them.

13.11 In April 1999 Mr Eddie Zajac and his wife Mrs Deirdre Zajac moved to 315 King Street, Rossmore. Their property is on the eastern side of King Street, and is the fourth property north of Devonshire Street or the fifth if one counts the property on the eastern side on King Street which straddles the intersection. Mr and Mrs Zajac were the first people to come to the scene of the fatal collision with which I am dealing: "the dust was still in the air." In about May 2000 they had a meeting at their property with an officer of LCC whose surname has been transcribed as both "Fonseker" and "Von Seca" and "Vonseca." I shall use the last alternative. Mr Vonseca's exact position was no longer recalled by the Zajacs. However, he came to discuss with them three issues which they had raised with LCC: s a creek culvert on their property which they considered dangerous; s street lighting; s the intersection of Devonshire Road and King Street.

Mr Zajac gave this evidence in chief as to his discussion with Mr Vonseca about the intersection: "Q. Is there anything that you can recall that you did discuss with him about the intersection and the safety - - A. The - basically the condition of the corner with the lighting factor, the signs and to me the fact that I had to give way to my left coming north on King Street, going to my own house meant that I had to give way to vehicles on my left coming from Devonshire Road. Q. Do you remember - - A. I had to stop. Basically I had to stop at the intersection to allow cars from my left to turn to King Street and when I did that, quite often cars would come from behind and brake behind me and beep their horns and say, 'Why are you breaking here?' Q. You're telling his Honour now about experiences that you had. Are you able to say whether or not you told Mr [Vonseca] those things? A. I would say yes, I can remember that, yes."

In cross-examination by Mr Windsor, Mr Zajac said that motorists become impatient when he was travelling north on King Street and was "having to stop and wait for cars coming from [his] left from Devonshire." This was explained in re-examination. After the fatal collision, a give way sign was placed on the southern side of the intersection facing motorists travelling north along King Street. After a further reconstruction of the intersection it was removed. Mr Zajac said: "Q. Are you able to tell his Honour what was put in and taken away? A. They did put a give way sign in from heading south to north on King Street, so we had a determination then I could actually come to that corner, I had a give way sign in front of me. I knew I had to stop. I could give way to the cars on my left. That's how it should be. Since that - - HH: And people behind you would know that that's what you're doing? A. That's right, because we're coming up to a give way sign. That give way sign is no longer there."

In further cross-examination by Mr Windsor, Mr Zajac said: "Q. What were those other issues that you in fact recall speaking to Mr [Vonseca] about when you were discussing the intersection? A. Signage. Q. Was it the situation that you knew that there was a sign south on King Street, indicating that the traffic approaching the intersection from south on King Street, that is, the side opposite your own, the priority road went from King Street around into Devonshire Road? A. Yes. Q. That the presence of the double unbroken lines on King Street indicated that you and other vehicles had to stay on the correct side of the roadway and you couldn't go over the double unbroken lines? A. Yes. Q. And that the lines, the double unbroken lines, curved around? A. Well, they were not visible, but yes. Q. But it was apparent, if you were looking out for the lines, just those double unbroken lines, that they did in fact curve around? A. Yes. Q. And you were able to see that in the daytime? A. Yes. Q. And when you had your car lights on at night-time, it was possible to see them when you're looking out for them? A. I think it would be very hard to see them, actually. Q. That is the curved part. Is that what you are saying? A. Yes."

In chief, Mrs Zajac gave this evidence at her interview with Mr Vonseca on this occasion: "Q. Now, in relation to the intersection, do you recall what was said between you and Mr [Vonseca] in relation to that intersection? A. I just said it because a dangerous corner. Q. Did you tell him why? A. Yes, because often we'd be at home, we'd hear screeching, we'd often see trucks go straight through that intersection. There was also accidents up there and there was no give way signs, stop signs, and there was no lines that you could see. They were faded. Q. Are you able to say whether or not you told Mr Vonseca all of those things or some of them or what you told him? A. I probably said some of them.

Q. Do you know which ones you told him? A. Well, he was aware there was no stop sign there and he was aware that we had mentioned there was only give way signs going out of our street, heading out of our street, which is the dead end, heading towards King Street. Q. What did he say, if anything, when you told him those things? A. He did say that he would look into it or pass it on to someone."

It is clear that the problems associated with the intersection were drawn to the attention of an officer of LCC in about May 1999.

13.12 LCC did respond to one of the issues raised by the Zajacs. On 18 July 2000, LCC responded to a letter from Integral Energy of 10 July 2000 regarding improved street lighting in the northern end of King Street. LCC accepted the earlier proposal of Integral Energy for the upgrading which required a Capital Construction of $899.90 and an annual charge increase of $278.16. LCC's letter was clearly generated by Mr Rajen Kumar. Exhibit 9 (a Lighting Appraisal Report) contains an earlier letter in the same subject, again generated by Mr Kumar, requesting the upgrading, which letter is dated 12 May 1999, i.e. before Mr Vonseca's meeting with the Zajacs. That letter appears to have been prompted by a telephone request made by Mr Tony Greco of 305 King Street on 25 March 1999 asking for more street lights as there was "only one street light in the street." Mr Kumar had been allocated to deal with Mr Greco's request. The evidence is silent as to what occurred on this topic between 12 May 1999 and 10 July 2000. The inference is open, and I draw it, that the Zajacs' raising of the issue spurred LCC into further action on the subject after over a year's inaction.

13.13 Collision 11 August 2000 This collision occurred at approximately 4.15pm. Mr Joe Camilleri was driving a Toyota Hilux utility eastwards along Devonshire Road at 30 kph, intending to turn right into King Street. Mr Cresto Tzortzis was driving a Ford Falcon utility north along King Street at 30 - 40 kph, intending to turn left into Devonshire Road. As the two vehicles turned the corner the front right hand side of the Falcon collided with the middle of the Toyota.

Mr Camilleri made this statement to the Police: "I was travelling east on Devonshire Rd. As I approached the intersection of King St. I slowed down ready to turn right into King St. At this time the other vehicle was turning left into Devonshire St. The front right of his car collided with the middle of mine in the tool box. The road is really narrow and there is no signs or anything. The double yellow lines are faded and you can't see them. Due to the indications on the road I was probably in the middle. As I said the road is narrow and you can't see any markings. My vehicle is fairly wide. The right side of my vehicle would have been in the middle of the road."

As both vehicles had been removed from the roadway when the Police attended, the Police were unable to ascribe fault. The COPS entry (E 11602480) states that "[t]he roadway is divided by double unbroken separation lines which are faded and not easily seen." Later the COPS entry makes this comment: "Police believe that the intersection [was] a contributing factor to this [collision] as it is a narrow road with faded dividing lines. The intersection is a T intersection but it is not set up like a T intersection. It allows the traffic from Devonshire Road to turn right into King as if it [were] the one continuous road."

According to the RTA records both vehicles needed to be towed away.

13.14 On 20 September 2000 the additional lighting was installed in the northern end of King Street.

13.15 In or about November 2000 Mrs Zajac had another meeting with Mr Vonseca. He visited her at her home. She gave this evidence in chief about this second meeting: "Q. What was the subject of that discussion? A. We discussed, okay, you've done - lighting had been done, but the intersection hasn't been done at all.

Q. What did you say, if anything, about the intersection? A. Well, at that time there was even people talking to me, there was accidents up there. OBJECTION (WINDSOR). NON-RESPONSIVE. ANSWER ALLOWED Q. Do you remember what it was that you said to Mr Vonseca concerning the intersection? A. I said it was dangerous and someone's going to get hurt. Q. Did you tell him why you had formed that view? A. We often heard screech marks, I did see people stop there and they were exchanging details from the accidents. Q. What, if anything, did he say when you told him that? A. At that time, he said he was going to [do] a traffic survey, get in contact with someone with a traffic survey. HH: Just before we go on, Mrs Zajac, you told me that you would hear the screeching of the trucks and hear the screeching of the brakes? A. Often. Q. And you said that sometimes trucks went straight through the intersection? A. Yes, there was trucks and one time I did see a bus.

Q. So it went straight ahead into your end? A. Straight ahead.

Q. And then they had to turn around? A. Yes. One time we had to open our gates up to get a truck to turn."

Mr Stitt QC elicited from Mrs Zajac that large trucks and heavy trucks frequently used the King Street / Devonshire Road route. She also said that prior to the fatal collision there were skid marks of different sizes and shapes in the vicinity of the intersection. In cross-examination by Mr Windsor, Mrs Zajac made this concession: "Q. But you can't recall what you said to him on that second occasion. Is that right? A. I recall that I said, 'You've redone the lights, but you haven't done anything to the intersection.' Q. Is that the extent, that you recall, of that second conversation that you had with Mr [Vonseca]? A. Yes."

However, that concession does not negate the earlier evidence that Mr Vonseca told Mrs Zajac that he would make an enquiry about a traffic survey. Such an enquiry could only be considered if concerns had been raised about the intersection and the only concern expressed by the Zajacs was safety. Such inferences can be readily drawn in light of the failure of LCC to call Mr Vonseca or to explain his absence from the witness box. There is no evidence that LCC did anything in answer to the concerns raised by the Zajacs about the intersection.

14 One might think that the answer to a question about the applicable speed limit would be an easy one, but it is not. There are before me six COPS entries for accidents near this intersection. Those entries relate to the three earlier collisions I have already discussed, to two one car accidents which are not otherwise relevant, and to the fatal collision with which I am dealing. Those COPS entries record the speed limit as: Date of Accident Speed Limit 19 - 5 - 1999 60 kph 8 - 9 - 1999 70 kph 15 - 3 - 2000 60 kph 11 - 8 - 2000 60 kph 3 - 11 - 2000 60 kph 25 - 5 - 2001 80 kph

15 Senior Constable Aram Holger Kraefft of the Metropolitan Crash Investigation Unit, who was the officer in charge of the investigation into the fatal collision, said, in cross-examination, that the applicable speed limit was 80 kph (p.110). It is probable that his opinion is that reflected in the COPS entry for the fatal collision. Mr Adam Zadro who was a regular user of the route and was familiar with it and with the intersection said that the speed limit was 80 kph (p.249). To those opinions one should add the information as to speed obtained from the traffic survey of June 1994 which established that the 85th Percentile Speed was 78 kph and that 34.64% of traffic travelled at speeds between 70 and 80 kph in Devonshire Road north. Since less than 18% of traffic travelled under 60 kph it is difficult to accept that the speed limit in Devonshire Road north was 60 kph.

16 LCC believed that the speed limit was 80 kph. After the fatal collision, LCC wrote a letter to the RTA bearing date 2 July 2001. Its likely author was Mr Rajen Kumar, a traffic engineer at this time. The substance of the letter is: "Council has received representations requesting reduction of the existing speed limit from 80 to 60 km/h on the subject road. Residents have expressed concern about the safety along the full length of King Street, Rossmore. King Street is aligned generally north/south and forms a T intersection with Devonshire Road. Devonshire Road is aligned east/west being the stem of the intersection. King Street to the north of the intersection is a gravel road, which has been closed to through traffic. The predominant northbound traffic movements along King Street turns left into Devonshire Road and conversely eastbound traffic from Devonshire Road turns right and travels south along King Street. Due to the tight geometry of the intersection trucks travelling north on King Street turning left into Devonshire Road often move close to the centre line and in some cases over the centre line to make their turn. On the 25 May, 2001 a double fatality occurred at this intersection. Reduction in speed will enhance road safety at the same location. As the implementation of speed zones come under the jurisdiction and responsibility of the Authority, this matter is therefore referred for your consideration. A quick response in this matter would be appreciated."

17 There does not appear to have been any speedy reply by the RTA. The basis of Mr Kumar's opinion as to the speed limit is set out in a report he prepared for the ordinary meeting of LCC to be held on 26 August 2002. This concerned a proposed reconstruction of the intersection. Under the heading "Speed Limit" the following is stated: "The last speed limit signs that the motorist see are on Bringelly Road and also on the northern end of Devonshire Road which specifies 80 km/h. The Roads and Traffic Authority has been requested to consider reduction of the existing speed limit from 80 km/h to 60 km/h on the subject roads. Reduction in speed limit will enhance road safety."

18 One can see from that information that a speed sign on Devonshire Road north regulated speed for traffic travelling south to 80 kph. However, there was no speed limit sign on any section of King Street.

19 Chief Inspector Richard Trent Le Merton, at the time of the fatal collision, was a Sergeant and the team leader of the Wetherill Park Highway Patrol. He was the first Police officer to arrive at the scene, between 6.00 and 6.05pm. On this issue he gave the following evidence in chief: "Q. What was the speed limit for vehicles travelling north along King Street? A. Well, by the presence of street lighting in a residential area, it becomes default 60 kilometres per hour.

Q. 60 kilometres an hour. A. Yes, unless signposted otherwise.

Q. Was it signposted otherwise? A. No, there was signposting in the areas around it, but not that particular section of roadway. HH: Q. Yes, but what was the last speed sign that a driver travelling north along King Street would have seen? A. From my recollection, it would be an 80 - kilometre - per - hour zone. Q. So unless he sees otherwise, he's entitled to accept that that's the speed limit, isn't it? A. Well, except coming into a built-up area, where there's provision for street lighting. It then became a default 60 kilometres per hour speed limit, a de facto limit."

20 His opinion is also reflected in a "Road Safety Audit" which he instigated immediately after the fatal collision by arranging an on-site inspection on Monday 28 May 2001. The Audit, which the then Sergeant Le Merton signed, is Exhibit H. Under the heading "Assessment" the following sentence appears: "The area is designated as a 60 kph speed limit by virtue [of] the sparse residential development and provision for street lighting." In cross-examination by Mr Stitt QC, the Chief Inspector agreed that the area was "semi-rural", with large blocks of land containing residences but not a "normal residential area." He agreed that the presence of houses in the area would not draw to a motorist's attention that it was a residential area (p.221). Later he confirmed that there was no actual speed limit sign on King Street, and the last speed limit sign a motorist in Mr Finch's position would see was an 80 kph sign on Bringelly Road.

21 Australian Road Rule (ARR) 21 provides: "(1) The speed limit applying to a driver for a length of road to which a speed-limit sign applies is the number of kilometres per hour indicated by the number on the sign.

(3) A speed-limit sign on a road applies to the length of road beginning at the sign and ending at the nearest of the following: (a) a speed-limit sign on the road with a different number on the sign; (b) an end speed-limit sign or speed de-restriction sign on the road; (c) if a road ends at a T intersection or dead end - the end of the road."

22 One can state, therefore, that the speed limit for motorists travelling south on Devonshire Road was 80 kph until it ended at King Street.

23 ARR 25 provides: "(1) If a speed-limit sign does not apply to a length of road and the length of road is not in a speed-limited area, school zone or shared zone, the speed limit applying to a driver for the length of the road is the default speed-limit.

(2) The default speed-limit applying to a driver for a length of road in a built-up area is 60 kilometres per hour.

(3) The default speed-limit applying to a driver for any other length of road is: (a) [for heavy vehicles 100 kph] (b) for any other driver - 100 kilometres per hour or as otherwise provided under another law of this jurisdiction."

None of the provisos of rule 25 is applicable. The issue therefore is whether King Street passed through a built-up area with a speed limit of 60 kph or, if not, the speed limit was 100 kph as submitted by Mr Stitt QC.

24 Built-up area, is defined in the Dictionary to the ARR: " built-up area , in relation to a length of road, means an area in which there are buildings on land next to the road, or there is street-lighting, at intervals not over 100 metres for a distance of at least 500 metres or if the road is shorter than 500 metres, for the whole road."

25 Appendix B to Exhibit 9, the Lighting Appraisal Report, is a 'site plan' marked with power poles as ○ (without a luminaire) and ● (with a luminaire). Fortunately it provides distances between some of the power poles. On the northwest corner of the intersection was a power pole (ID 135) with a luminaire. Going south from that point identifying poles with luminaires and distances in between:

Pole Distance ID 135 0 ID 144 42.3m (but light not working on day of accident) ID 148 116.7m (or 159m because of above failure) ID 154 234.7m At Corner of Wynyard Ave Not stated, but clearly greater than 100m

26 The site plan ends after the pole without a luminaire south of the pole with luminaire on the south-western corner of the intersection of King Street and Wynyard Avenue. From a lighting plan annexed to Exhibit M, it is clear that there is lighting south of Wynyard Avenue and as far as Bringelly Road. Doing the best I can to interpret that document (dated 31 May 1996) there was to be a luminaire on every second power pole, after some existing luminaires were removed, others retained and some new ones installed. However, the distances between the poles I cannot discern. Based on the information contained in the site plan to which I have just referred, it appears that, roughly, the distance between power poles is 70m, so that the distance between luminaires is 140m. However they were closer together at the two bends at the southern end of King Street. After the last of those bends there was a distance of approximately 500m to the intersection with Wynyard Avenue and then about 700m to the intersection with Devonshire Road, a total distance of over one kilometre. On the information available I could not and do not find that there was "street lighting at intervals not over 100 metres for a distance of at least 500 metres."

27 The question whether there were "buildings on land next to the road … at intervals not over 100 metres for a distance of at least 500 metres" is even more problematic. It is to be noted that the definition requires that there be "buildings on land next to the road" not "buildings next to the road." The only evidence of this is contained in Exhibit 11, a cadastrally enhanced aerial photograph of the vicinity of the intersection. That map does not extend as far south as Wynyard Avenue. On the western side of King Street is a block numbered 132. From the information available from the sight plan in Exhibit 9 it appears to be about 250 - 220m long. On the eastern side of King Street, opposite block 132, are 2 blocks and portions of 2 blocks. When one counts the buildings on those blocks and notes their extent, it appears to me that there are buildings on land next to the road at intervals of less than 100 metres. Whether that continues further south I am unable to say. The buildings on block 132 appear to be greenhouses and on the block south of it to be a residence and either greenhouses or poultry sheds. However, such structures are all "buildings." In those circumstances I must rely on the evidence of the Chief Inspector who was present at the scene on the night of the fatal collision and subsequently visited it in daylight hours. I find therefore that King Street was a "built-up area" in its relevant portion between Wynyard Avenue and Devonshire Road and that the applicable speed limit was 60 kph.

28 One other piece of evidence needs to be considered in this regard. In chief, Chief Inspector Le Merton said that he had a concern about a "speed limit reminder." He continued (at p.178): "All the roads in the near vicinity were 80 kilometres per hour zones; however, whilst clearly by the provision of street lighting it became a de facto - 60 kilometres per hour speed limit, there was no reminder sign of that change in speed zone for motorists travelling in that portion of roadway."

The important point is the first clause in that evidence, that all nearby roads had 80 kph speed limit.

29 Speed limits are imposed by the RTA, not LCC. The relevance of the speed limit concerns the liability of Mr Finch. He gave evidence that he thought it was 80 kph. He could certainly be forgiven for holding such a belief in light of the confusing evidence about this issue, the various opinions expressed, the ambiguity of having to measure out distances between street lights and buildings and the fact that it has taken three silks, four junior barristers and a judge to ascertain (it is to be hoped correctly) what it was.

The Configuration of the Intersection immediately prior to the Fatal Collision

30 From Bringelly Road, King Street travels north for about 730m and then turns sharply (90o) to the left then travels westward for about 250m and then turns sharply to the right (90o) to go northwards again. Approximately 500m further north there is a T intersection with Wynyard Avenue. This is an ordinary T intersection. There is a street light on the south-western corner of it. About 700m further north is the intersection with Devonshire Road. 85m south of the intersection is power pole ID 145 onto which the RTA affixed the modified T intersection warning sign (that was probably easier than erecting it on a pole at 80m from the intersection, as Mr Kumar had requested). Exhibit C (a Terrestrial Photogrammetry survey) and Exhibit E (an unlaminated copy of Exhibit C) show pole ID 145 as a "pole with light" but that caption is incorrect: it ought be "pole with a sign." 49m further north is power pole ID 144 which is marked on Exhibit C and E as "pole with transformer and light." That is correct but it is common ground that on the evening of the collision the luminaire was not functioning. For how long it had been inoperative, the evidence does not disclose. According to Exhibits C and E, the DWBL starts just south of pole ID 144 which aligns with other evidence that pole ID 144 is 35m south of the intersection and that the DWBL commences 37m south of the intersection (rather than the 30m originally proposed by Mr Kumar). Whilst RRPMs ("catseyes") may have been emplaced when the work was completed on 4 December 1998, none is evident in any of the photographs taken by the Police on the evening of the collision (Exhibit B) or in any of the photographs taken in daylight on the following day (Exhibit D). I indicated to Counsel during the hearing that I was unable to see any evidence of the catseyes on the material before me and that I intended to make a finding that there were none on the evening of the collision. No one sought to persuade me otherwise. Assuming that they were in fact embedded on 4 December 1998 I can only conclude that they had been abraded from the surface of the pavement of the road by 25 May 2001. It is likely that that was done by vehicles (and more particularly heavy vehicles) driving over them although one cannot exclude the possibility that they were removed by errant schoolboys to be used as marbles! On the evening of the collision, they were not there to act as a visual cue to motorists at night of the presence of the DWBL. Chief Inspector Le Merton was unable to see any catseyes on his inspection of the scene (p.168). The curve in the DWBL commences 6m before the intersection. It is offset to the left. In the Road Safety Audit (Exhibit H) the then Sergeant Le Merton described it as "a slight kick to the left" and in his evidence as a "deflection" (p.239). The gap in the DWBL, to allow vehicles to make the theoretical right hand turn into King Street north is 6.2m (Exhibit T) or 6.5m (evidence of Snr Constable Kraefft p 31.05). Whilst there is evidence that the DWBL was faded (from a motorist and the Police involved in the collision on 11 August 2000 and from the Zajacs) all the experts in this matter accept that the DWBL was legible and the photographic evidence confirms that. However I do accept that in places the lines were obscured by skid marks laid down prior to this collision. An example of that is shown on Exhibit D10 (a photograph) showing a large black skid mark over the DWBL in Devonshire Road that could not possibly have been created on the evening of 25 May 2001, less than 24 hours before the photograph was taken.

31 Across King Street, immediately north of the intersection, a holding line has been painted across King Street on the same alignment as the northern pavement of Devonshire Road. 4m north of that line, there is a power pole on the eastern side of the road, 3m west of the eastern alignment of the pavement edge of King Street which carries street signs. Besides that is a give way sign facing traffic heading south. On the western side of King Street, 5.5m north of the holding line and 3m west of the western alignment of the pavement of King Street is a post with a "No Through Road" sign. When that sign was erected is unknown but it was not in recent times as the sign is smaller then the current standard size sign. From photographs B6 and B7 it appears to only become legible when one is about 40m from it. Also on the north-western corner of the intersection is power pole ID 135 which carries a luminaire on a long outreach arm of 6.5m. However that did not reach over the intersection. It placed the luminaire above King Street north of the holding line on the alignment of the western edge of the pavement of King Street.

32 On each side of the western end of Devonshire Road, were large concrete culverts with a guide post with reflectors on either side. The significance of the culvert on the south side is that it made it difficult for large vehicles to turn left from King Street to Devonshire, without crossing the DWBL in Devonshire Road. The culverts are best seen in photograph Exhibit D5.

33 The gradient of King Street is level. The pavement is 6.3m wide. The shoulders are gravel. There is a slight camber, the crown of the road is at the centreline (this is clearly shown in Exhibit D). The pavement of the northbound lane is 3.2m wide. North of the holding line across King Street, the street itself is not paved, the surface being gravel. However, it has not been suggested in these proceedings that this change of surface of King Street would give any visual cue to a motorist at night, approaching the intersection from the south, that King Street was not the through road. Rather, the visual cue of street lighting along King Street north of the intersection was a cue to the contrary.

34 The last 230m of Devonshire Road is the section which heads due east to make the T with King Street. The pavement is 6.5m wide and the eastbound lane is 3.8m wide. As one approaches King Street, there is a modified T intersection sign. There is no actual distance given as to where it was placed. One could assume that it was at 80m west of the western alignment of King Street, as originally proposed by Mr Kumar or 8 October 1998. This sign can be seen in Exhibit D8, a little distance west of a power pole which is that shown as pole ID 499 in Exhibit 9. Pole ID 499 is 81.5m west of the intersection, so the sign must be about 82m west of the intersection. On the eastern side of King Street, opposite the eastbound lane of Devonshire Road, there is a sign containing chevron markings which indicate the direction that traffic should take when turning into King Street. The chevrons indicate that traffic should head south. This can clearly be seen in Exhibit D10. The chevrons also indicate that Devonshire Road ends.

35 The DWBL extends for at least 25m from the interaction along Devonshire Road (the limit of the photogrammetry survey) and there is nothing to suggest that they also do not extend the 30m originally proposed by Mr Kumar.

36 Mr Adam Zadro, a motorist who was following Mrs Estephan's vehicle immediately prior to the collision, did not recall street lighting on Devonshire Road, although he did remember that there was lighting on King Street. However, Exhibit 9 (Lighting Appraisal) establishes that there was one streetlight in pole ID 503 but that was 135.4m west of the intersection, i.e. well west of both the modified T intersection sign and the commencement of the DWBL. The distance between the lights should also be contrasted with the more frequently appearing luminaries in King Street. However, Mr Zadro's failure to recollect lighting in Devonshire Road (he was a frequent user of the two roads) can be taken as his impression that Devonshire Road was poorly illuminated, an inference that I also draw.

37 The length of the turn that the motorist would have to take from the eastbound lane of Devonshire Road, to the southbound lane of King Street is approximately 11m (evidence of Mr Stuart-Smith, p.457.05). How long would it take to make this turn? That, of course, depends on the speed at which a particular motorist drives his or her vehicle around the curve. At what speed could cars negotiate this corner? I have used the word "car" advisedly, to mean ordinary vehicles such as sedans and stationwagons, not heavy or large vehicles. After the fatal collision, LCC caused to be erected an advisory speed sign for those making this turn. The advised speed was 35 kph. Mr Stuart-Smith estimated that Mrs Estephan was travelling between 20 kph and 30 kph during this turn. That enables me to adopt as a time for making the turn between 1.3 and 2 seconds. Mr Bailey thought that turn could be made at 35 kph. He agreed that the turn could be made in between 1.5 and 2 seconds "perhaps a fraction more." Mr Bailey's report (Exhibit 7) at page 26 sets out material from a report of Mr Sculthorpe (which is not in evidence) but no objection was taken to Mr Bailey's incorporating this in his report. This material is: "Time taken by the white van to move from a position in line with the power pole at the south west of the intersection to the point of impact (i.e. as illustrated in Figure 15) was timed at approx 2.5 seconds in the video and this appears consistent with times measured for light vehicles which turned right in the daytime video by Mr Sculthorpe, which took approx 2.0 to 2.5 seconds to move from adjacent to the power pole, to the assumed point of impact."

Footnote 4 reads: "Times measured using a stopwatch from when the front of the vehicle was aligned with the power pole at the north-west of the intersection and when the vehicle reached the point of impact per Figure 15."

38 A body travelling at 20 kph travels 5.5m per second. This indicates that it would take 2 seconds to make the turn. A body travelling at 30 kph travels 8.3m per second indicating that the turn could be made in 1.3 seconds. However, cars have a length so that the time taken from the first part of the car commencing to make the turn to the last part of the car finishing the turn will be longer. However, considering the 35 kph advised speed subsequently posted and Mr Bailey's view as to the time that he could make the turn at a "reasonable upper bound" at which he could comfortably make the turn (p. 664) of 35 kph, I consider it reasonable to find that an ordinary, prudent motorist with the knowledge of the intersection layout could complete the turn in 2 seconds.

39 The final matter to consider at this stage is the visibility between King Street and Devonshire Road for those in the positions of Mrs Estephan and Mr Finch. The land on the southwestern corner of he intersection is an open paddock with wire fencing and some small trees. This can be seen in Exhibits D9 and D11. In cross-examination Senior Constable Kraefft gave this evidence: "Q. Is the court to understand that it was your observation that it was possible from that location, that is, if in Devonshire looking south-east into King, that you could see vehicles on that roadway as well; that is, on King? A. Yes. Q. Would you agree with this proposition: that if a driver of a sedan was 150 metres west of the intersection, that is, the driver of the sedan in Devonshire Street was 150 metres west of the intersection, and if that driver looked to the south-east towards King, he could see a vehicle which was not less than 250 metres away on King? A. Are you talking night-time as relevant for these proceedings?

Q. Yes, for present purposes, thankyou. A. Referring back to my memory, I came down along Devonshire and came around the left-hand bend and approached - and apart from seeing everything at the intersection, I would agree that if one did look from that position you would be able to see traffic with headlights on as per the scenario you're proposing; based on the topography that's across. Q. Just to clarify what you mean by the topography, is this the situation: that the topography between Devonshire and King - and I'm talking now the area south of Devonshire and west of King - was a grass paddock? A. Yes.

Q. It was flat? A. There were a few trees around, but nothing that would - - Q. I'll come back to those in a moment; I'm talking about the grass paddock? A. Yes, there was.

Q. Flat in the sense of there were no hills - - A. Slightly undulating, but generally flat, yes.

Q. No hills between Devonshire and King? A. Correct.

Q. There were a few trees, as you say, but they were scattered? A. Yes. Q. They had no real impediment to viewing from Devonshire at the point that I indicated earlier, through to King at the point I indicated earlier? A. No real impediment, no. Q. Likewise, no impediment to a person on King looking north-west onto Devonshire from the locations or the positions that I indicated earlier? A. That is correct. If one looks between - there may have been a couple of houses along Devonshire Road. There were no houses or dwellings on the western side of King, but up near the - you're talking 150 metres back."

40 As I have already pointed out, Mrs Estephan turned 32 years old on the day of her death. She lived with her family at 40 Clementson Drive, Rossmore. Clementson Drive is a 'U' shaped road, the two ends of which join Fifteenth Avenue from the south. The eastern mouth of Clementson Drive is the next intersection on Fifteenth Avenue west of its intersection with Devonshire Road. The distance between that intersection and the intersection of Devonshire Road and King Street is approximately 3 kilometres. The parties, other than LCC, admitted that Mrs Estephan was acquainted with the intersection of Devonshire Road and King Street and was familiar with it. LCC admitted that she was acquainted with the intersection and that she travelled regularly to her relatives from her home east on Devonshire Road and south on King Street on Friday evenings and also that she travelled on the road at other times during the day and evening. I do not understand the quibble of LCC in not making the admission made by the other parties. I have no hesitation in concluding that Mrs Estephan was familiar with this intersection.

41 Mr Jamieson testified that it is normally considered difficult to judge precisely the speed of an oncoming vehicle with its headlights on (p. 335.50) but conceded that it is easier to gauge the speed of a vehicle from side-on if, at night, the vehicle has side lights (pp. 529 - 530).

42 Mrs Estephan was driving a blue 1993 Ford Falcon stationwagon registration number WEM 473. I shall refer to this vehicle as "the Ford" hence forward. It was 5.003m long, 1.857m wide and had a kerb mass of 1.59 tonnes. The COPS report (Exhibit 20) suggests that Charlene was in the front passenger seat, Steven was the rear driver's side passenger and Joanne was the rear left side passenger. The two right side occupants of the Ford were those killed in the collision.

43 Mr Finch was born in 5 August 1969 and was 31 years old at the time of the fatal collision. He was first licensed to drive at the age of 17 and commenced to drive trucks when he was about 19 years old. He had been a truck driver for 12 or 13 years at the time of the collision. At first he drove rigid trucks but 3 or 4 years later commenced to drive semi-trailers. Later still he obtained a licence to drive road trains. He was continuously employed as a truck driver since obtaining his first truck driver's licence.

44 He commenced driving for Rocks Excavations and Plant Hire Pty Ltd in September 2000. The only truck he drove for that company was the one he was driving at the time of the collision. The truck normally towed a trailer ("90 per cent of the time"). He carted topsoil, earth, rock or any form of landfill. On the evening of the collision the truck was towing a trailer and both the truck and trailer were unladen.

45 Later, I shall outline Mr Finch's movements on the day of the collision. His work called him to Kelly Street, Austral that afternoon. Austral and Rossmore are adjoining suburbs separated by Kemps Creek (the water course, not the suburb named after it, which is north of Rossmore). Essentially Kelly Street, Austral runs parallel with King Street, Rossmore, Kelly Street being to the east of King Street. The distance between the two streets is about one kilometre. In chief, Mr Finch said that he had never been to Kelly Street, Austral before, "or the surrounding area". In cross-examination by Mr Semmler QC Mr Finch said he had never travelled along King Street, Rossmore before and he was quite "unfamiliar" with it. I accept that Mr Finch had not travelled the route of King Street / Devonshire Road before and the existence of the modified T intersection of the two roads was unknown to him.

46 At this stage it is appropriate to say something about Mr Finch's credibility. One can wholly understand that a person in Mr Finch's position, a driver whose truck collided with a stationwagon, killing two of its occupants, might either intentionally or unintentionally seek to exculpate himself of responsibility for the tragedy or to minimise his culpability. Mr Finch's evidence must, accordingly, be approached circumspectly. Exhibit CC is a transcript of evidence given by Mr Finch in the Local Court of Camden on 10 December 2002. Only the highlighted parts of that transcript are in evidence. However, it is clear that they were criminal proceedings and that Mr Finch was the defendant (to use the terminology then in use). This fatal collision has exposed Mr Finch to both criminal and civil liability, although it is obvious that as far as civil liability is concerned Mr Finch is indemnified. Mr Finch was called by Mr Stitt QC who was assisted in this regard not only by his junior Mr H.W. Stitt but also by Mr Heazlewood. I listened closely to his evidence and formed a favourable impression of him. I accept that he has done his best to tell me the truth as far as he perceived it, and as far as his memory allowed him. There were no significant inconsistencies in his evidence. He made a number of frank admissions contrary to his interest, to which I shall advert to in due course. Save for one matter which I shall refer to later, and for which there is good explanation, I have no hesitation in accepting his evidence. One telling piece of evidence, in my view, was given in cross-examination by Mr Semmler QC. Mr Finch was being pressed to provide his opinion of the maximum speed of the truck in gear 6. He said he would only be guessing. Mr Semmler QC asked Mr Finch to share his view about that with the Court. Mr Finch did not understand what was meant by that question. I them put this question and received this answer (p. 599.45): "Q. You drove this truck for a large number of months. Correct? A. Yes. It's been five years, Your Honour, and in that five years, I've seen many people trying to make me forget things, and now it us really hard to remember things. I know it makes your job even harder, but…"

Mr Semmler QC then continued his questioning. Mr Finch has given truck driving up since this collision and has obviously been given counselling. Nevertheless he was trying to assist me. The transcript is not littered with "I can't remember" or like words. The above answer appeared to me to be given very sincerely and assisted me in forming my view about Mr Finch's credibility.

47.1 The Truck This was a 1981 International Atkinson tipper truck registered number MTA 769. It was owned by Rocks Excavations and Plant Hire Pty Ltd. Its odometer reading was 264,364. Its tare weight was 10.93 tonnes. The truck had 10 wheels, 2 front steer wheels one on each side of the truck and 2 axles at the rear, each axle having 2 wheels on each side. Its gross permissible weight was 45 tonnes but it was unladen at the time of the collision.

47.2 The Trailer The truck was towing a Gorski tri-axle trailer registered number K 93623. Its tare weight was 4.9 tonnes. It had its own tipping mechanism. It had 12 wheels, 2 wheels on each side of 3 axles. The axles were equidistant apart. This trailer has been described as a "pig trailer" in contradistinction to a "dog trailer". A dog trailer has wheels at the front which are capable of turning. A pig trailer has front wheels which are fixed (p. 352, pp. 460 - 461). A feature of a pig trailer is that its direction of travel is directed by the tow bar by which it is attached to the truck. The tow bar was triangular, the apex of the triangle being attached to the truck. A pig trailer will follow the path followed by the truck, absent some external force.

47.3 The Rig By this term I refer to the combination of the truck and the trailer. The rig was 15.5m long and 2.4m wide. Its unladen weight was stated by Mr Stuart-Smith as being 16.8 tonnes but the sum of its unladen components is 15.83 tonnes. The significant thing is that the total mass of the rig was at least ten times that of the Ford.

47.4 Gears of the Truck The engine of the truck has been described as a "Triple 4 Cummins". It was a 6-cylinder engine. The gearbox was a "Roadranger". It had one reverse gear and 13 forward gears. The highest rate of operation of the engine was 2100 RPM. Beyond that point a governor in the diesel injector pump would prevent the engine "revving any harder". The rate for the maximum torque of the truck was between 1500 RPM and 1800 RPM. Changing gears was dependent upon the rate of RPM. The clutch needed only to be engaged at the commencement of a run. Thereafter gears could be changed by the gear stick without depressing the clutch. As Mr Semmler QC interjected at p. 537.50, it can be seen that the gear system was "semi-automatic".

The gear stick has 2 "buttons". The dark black "button" changes the gears between high and low range. In Exhibit 1, this is referred to as the Range Lever. The low range of gears is reverse and gears 1 to 5. The high range of gears is gears 7 to 13. The second "button", the red "button", splits the top gears. In Exhibit 1, this is referred to the as the Splitter Control Button. Exhibit 2 is a diagram which shows the configuration of the truck's gears. In the high range of gears, gears 6, 8, 10, and 12 are coloured black and gears 7, 9, 11 and 13 are coloured red. According to Mr Finch gears 7, 9, 11 and 13 are activated by "flicking the red button", by engaging the Splitter Control Button. In cross-examination by Mr Semmler QC, Mr Finch said that the Splitter Control Button "never worked during the whole nine months" that he drove the truck (p. 594.30) so that it was impossible for him to engage gear 7 as a "red gear" according to Exhibit 2. The inference must be drawn that the Splitter Control Button was inoperative and that gears 7, 9, 11 and 13 could not be engaged. This was the highest of, essentially, 3 ranges of gears available to Mr Finch. This was not of concern to Mr Finch's driving of the truck. In the same answer he volunteered this: "It wasn't a highway truck as such, it was a round-town truck, so it didn't have to go fast."

According to Mr Finch, each of the gears had a maximum top speed. The inference to be drawn is that when that speed, or near it, was attained, the driver would have to change up a gear. When driving on a freeway, unladen, Mr Finch used gear 12. He would reach a speed of 100 kph when doing that but conceded that that was a maximum permissible speed for a truck in any event.

47.5 Brakes Both the truck and the trailer were fitted with air brakes. Those brakes operated on all 22 wheels of the rig. The truck was also fitted with a handbrake which Mr Finch labelled "the maxi brake". There was also a compression brake which Mr Finch labelled "the jake brake". This was operated by a switch on the dashboard of the truck. Mr Finch left it on "90 per cent of the time". By taking his foot off the accelerator pedal, the compression brake would operate automatically. The compression brake was activated on the day of the collision (p. 544.09).

Mr Finch gave this evidence as to the handling of the rig: "Q. When you drove the truck and towed the trailer, whether it was either laden or unladen, did you observe the way in which it tracked behind your truck? A. Y es.

Q. How was that? A. In a straight line, and it would stay directly behind your vehicle.

Q. That's whilst ever the truck was moving in a straight line. A. That's right. Q. If the truck turned a corner or you had to do some manoeuvre, how did the pig trailer track then? A. Well, it would still follow the direction of the truck, but the wheels on the trailer would track in a different position than the driver wheels of the truck.

Q. In what way were they different? A. It would go closer to an object, so if you're turning left as you past the object with the truck, the trailer would be closer to it than the truck would have. Q. May we take it that you operated the brakes on this truck on many, many, many occasions? A. Yes, that's right. Q. When you operated the brakes on the truck, whether it was laden or unladen, what did you observe about their performance? How did they operate? When you put your brake on, did they operate immediately or was there a time lag or what? A. No, it felt like it was a straightway. Q. This truck, how did it react under the braking to your observation in the period of time that you drove it up to and including the day of the accident? A. Yes, it was fine. Q. Did this truck present any difficulties in driving it - - A. No. Q.- - in the eight or nine months that you drove it? A. No. Q. Did you have any difficulty steering it or controlling it? A. No? Q. Did you have any difficulty braking it or bringing it to a halt? A. No. Q. Whether it was laden or unladen. A. That's right. That's correct."

Senior Constable Kraefft said that "the truck was mechanically sound enough in regards to its braking efficiency" (p. 53.17). About 2 to 3 weeks prior to the collision Mr Finch had taken the truck to the RTA yard at Penrith for the purpose of renewing its registration. According to Exhibit 20 (COPS Report), its registration expired on 6 July 2001, so this visit must have been for the renewal of registration after that date. The vehicle was inspected by RTA inspectors and passed for registration. This is an important fact because it means that truck was considered "roadworthy" and this affects its retardation factor, the rate of braking. This was accepted by Mr Jamieson (p. 408.10).

47.6 Lights The truck had two sets of headlights, each set having one lamp on the right hand side and one on the left hand side of the truck. One set of lights was in the bullbar of the truck, the other set was in the grill. On low beam, the lower set of lights, those in the bullbar, were illuminated. On high beam, the upper set of lights was also illuminated. There was some confusion caused during the hearing by some Counsel referring to "driving lights", the inference being sought to be drawn that they were lights in addition to high beam lights. Consider this passage of evidence: "Q. The headlights that you had in operation that night, did I understand you to say that you don't think it was high beam? A. When? At the point of the accident? Q. Y es, when the accident occurred. A. No, I don't believe it would have been. Q. Well, the fact is you have no recollection now as to what was the headlight situation, whether high beam or low beam. A. Well, knowing that there was a car in my sight, you'd assume that they would do the right thing by dipping their headlights for me, so I would have dipped mine for them.

Q. Which car are you talking about? A. The vehicle coming on my left.

Q. The car that you collided with? A. Yes. Q. From that may I properly infer that you had your high beam on at that stage, at least? A. I don't recall. Q. The fact is you've got absolutely no recollection as to the state of the headlights immediately before the accident occurred? A. That's right.

Q. You've been in court throughout the trial, haven't you? A. Yes. Q. And you heard evidence of a couple of the witnesses that the driving lights were on or at least one of them in operation when- - A. The headlight?

Q. - - the truck finally came to rest. A. The headlights? Q. Wasn't it the driving light? A. No, I- I call them headlights, your Honour, because they are a headlight, the same as a car headlight. HH: Q. They're the ones on the bumper? A. Yes. Q. Not the ones on the grill. The photographs show that anyway, don't they? Stitt: Yes, they do, your Honour. Semmler: Q. Of course, the ones in the grill - they could be described by lay people as driving lights? A. We call them - a driving light is you bolt it to your bullbar, bolt it to your bumper bar or whatever, so that to me was just a high beam light."

After the collision, the engine of the truck was switched off but, otherwise, the controls of the truck were not touched. Exhibit B16 (a photograph taken by the Police in the evening of the accident) shows the left hand side low beam light of the truck still burning, but the right hand side has been smashed. Both high beam lights are in tact and neither is burning. That is confirmed by the evidence of Senior Constable Kraefft (p. 43). I accordingly, have no hesitation in accepting that the truck was only burning its low beam lights immediately prior to the collision. If Mr Finch had earlier engaged his high beam lights, he must have turned them off when he became aware of the approach of the Ford: see p. 576 - 577.

On top of the front of the cabin of the truck were 5 orange clearance lights, 3 grouped in the centre and one near the edge of the front cabin on either side. Those lights were burning immediately prior to the collision.

On the side of the truck, on the fuel tanks on each side of the truck, were 2 clearance lights, one at the front and one at the back of each fuel tank. To use a nautical analogy, they were orange forward and red aft. The fuel tanks were behind the cabin of the truck, underneath the bin, but in front of the 2 rear axles. Senior Constable Kraefft estimated that they were 0.7m above the ground. These lights were also illuminated.

The trailer also had 2 clearance lights on each side placed equidistant between 2 wheels, on the base of the bin. These were higher than the clearance lights on the side of the truck. They, too, were orange forward and red aft. They were illuminated as well.

Mr Finch gave evidence that there were also clearance lights on the side mirrors at the front of the truck. These, too, would have been illuminated at the time of the collision.

Although not relevant to any issue in this case, the evidence also establishes that the taillights were in tact and "working" at the time of the collision.

47.7 Defects in the Truck and Trailer On 5 June 2001, the rig was inspected by Senior Constable Grant Bernard Henville of the Engineering Investigation Section. Inter alia, the Senior Constable has qualifications as a motor mechanic and heavy vehicle mechanic. Following upon that inspection he prepared a statement dated 27 August 2001. It is part of Exhibit Y. The relevant part of the report is this: "5. The accelerator was free and in the rest position with no tendency to bind on application. 6. The steering system consisted of a box type with power assistance. All front steering and suspension components were connected and in a roadworthy condition. I started the vehicle and I was unable to obtained full left lock. I then checked the power steering fluid reservoir and found the level to be low but serviceable. The vehicle was then driven into the pit area of the RTA for further examination with the assistance of RTA inspector John Goodwin. The front steer axle was jacked up so that the front wheels were off the ground and with the engine running I was still unable to obtain full left lock. The engine was then switched off and full steering lock-to-lock operation was obtained. The engine was re-started and full lock-to-lock operation was obtained. 7. The truck was fitted with a Hendrickson rear suspension system. The left front Hendrickson bush had excessive movement. There was excessive movement in the spring hangers and pins. The main leaf spring for the rear right spring was broken. The remaining rear suspension components were in a serviceable condition. 8. The truck was fitted with drum brakes fitted to all axles. The operation was of the full air type. The Maxi brake (park brake) switch was faulty and would leak air when the park brake was applied. Air would not leak from the switch when the park brake was released. All other truck braking components were in a serviceable condition. The truck was placed on a brake testing machine and the brake reading obtained from this vehicle, well exceeded the minimum requirement. 9. All tyres fitted to the road wheels of the truck were inflated and all tyres displayed roadworthy tread depth. 10. The truck was defected for the following faults:

s air leak at maxi control (cabin) s engine oil leaks s excess movement in left front bush of Hendrickson s broken main leaf spring right front of rear springs s left steering lock unable to turn to left lock fully. (engine running vehicle on ground) s right front blinker inoperative s accident damage front of vehicle. 11. Coupled to the truck was a GORSKI tri axle trailer, registration number K-93623. The trailer was placed over the RTA pits and the following defects were found:

s Left centre axle excessive brake drag. s inoperative brakes on the left rear axle due to brakes being out of adjustment. s cracked brake linings on left centre axle. s excessive movement in all suspension radius rod bushes. s right front spring under the retaining bolt (excessive movement of suspension components has allowed spring to re allocate itself into an incorrect position). s loose suspension U bolts on front axle. s excessive movement left rear suspension rocker box. s excessive movement left front and left rear wheel bearings. s insufficient tread depth on the inner and outer tyre on the right rear axle, inner tyre left rear axle and left outer tyre on the centre axle.

[12]. At the completion of the examination the truck and trailer combination was test driven and at no time did the steering become restricted on either left or right lock. The truck and trailer was then defected due to the above mentioned faults."

The Senior Constable went on to comment, with the exception of being unable to obtain full left steering lock on initial attempts, all other defects detected were "old". He made a later statement on 23 October 2001 providing further opinions: "6. It is my opinion that the defects I have found with the vehicle would not cause a sudden loss of control. However the defects with the truck and trailer suspension components may cause the vehicle to wander when the vehicle was driven at speed. 7. The nearside rear brake was inoperative and would not lock the nearside rear wheel due to a lack of adjustment. It appeared to me that this brake had been in this condition for a considerable time before the collision. It is my opinion that this brake not working would only have minimal effect on the braking performance of the trailer as there was 11 other braking axles on the truck and trailer combination. 8. In relation to the restricted left steering lock that I detected on initial examination I am unable to determine what caused the restriction as the problem disappeared and was not reproduced during the course of my examination. The problem may have occurred as a result of the impact. 9. As a result of my examination and based wholly or substantially on my specialised knowledge, I am of the opinion that the vehicles were in an unroadworthy condition and the defects I located would have changed the handling characteristics of the vehicle. However a regular driver of this vehicle would be aware of the altered handling characteristics. The defects on the truck and trailer may have contributed to the cause of the collision."

An opinion that something may have contributed to the cause of an accident only provides a court with a possibility, not a probability. Nevertheless, a number of Counsel chose to use this material to cross-examine both Mr Finch and the experts. At the end of a hearing that lasted 3 weeks, I was still left only with evidence that these defects may possibly have contributed to the accident, and evidence that they did not, for example in the evidence of Mr Bailey at p. 704 and in his report, Exhibit 7, pages 18 - 19. Furthermore, the suggestion of any effect on the braking system is inconsistent with the evidence of Senior Constable Kraefft that the vehicle was mechanically sound enough as far as braking efficiency was concerned. I am not persuaded on the balance of probabilities that any of the defects identified by Senior Constable Henville as existing prior to the collision was a contributory factor to it.

48 In accordance with his normal practice, Mr Finch attended his employer's depot at Edward Street, Riverstone at 5:30am. He had to be out of the depot by 6am in his truck. His first trip was to South Sydney Junior Leagues Club where he was not admitted because it was "too wet". He then drove to Alexandria and picked up a load and drove that load to Warwick Farm. He then took a load of soil from Warwick Farm and delivered it to a smallholding at Kelly Street, Austral. He made "four or five" such trips. The route between Warwick Farm and Austral did not take him along Devonshire Road and or King Street, Rossmore.

49 At some time on the morning of that day, he was pulled over by "the RTA" on a trip back to Warwick Farm. Two defects were found: one was a problem with a tyre on the trailer, the other Mr Finch could not recall.

50 At the time he was pulled over, he had his "boss" with him: they were seeking to obtain a spare wheel for the truck, because he had a punctured tyre. They changed the punctured tyre with one from another truck at Warwick Farm and then drove off to find another spare wheel to replace the borrowed one. He was working with two other of his employer's trucks on that day. The defect notice issued by the RTA inspector has never been found, despite enquiries by, probably amongst others, the Police (Exhibit 5).

51 Mr Finch's recollection is that he finished dropping his last load at Kelly Street, Austral "around 5:00 in the afternoon", but it may have been later as the collision occurred at approximately 5:55pm. The other two trucks were being driven by Daniel ("Danny") Beaham and by "Alfie". The employer company had a "road foreman" whom they were required to ask for the route to be taken, on this occasion, the route back to the depot. The "boss' plan" was that all his trucks travelled on the same route so that if a truck broke down the driver of that truck could be assisted by a driver travelling behind him. At the time of his departure from Kelly Street, it was "darkish, just turning dark, but more dark than light". According to Mr Stuart-Smith, dusk occurred around 4:59pm and civil twilight terminated at 5:26pm.

52 Mr Finch was given directions as to the route he was to take. His intention after receiving that direction was to travel south along Kelly Street to its end on Bringelly Road, to turn right there and then to turn right into the first street on his right on Bringelly Road. There is no dispute that that street is King Street, Rossmore, although Mr Finch did not then know its name. His intention was to follow that road to its intersection with Elizabeth Drive and then to turn right. Accordingly I accept that: (a) Mr Finch did not have any personal knowledge of the intersection of King Street and Devonshire Road; (b) he had not been told about the intersection by his "road manager". (c) he anticipated that King Street would lead him directly to Elizabeth Drive; (d) he was looking for an intersection at which he would have to turn right, not one at which he would have to turn left.

Of the three trucks at Kelly Street, Austral, Alfie drove off first, then Mr Finch, and then Danny.

53 After turning right out of Bringelly Road into King Street, Mr Finch proceeded north along King Street. He said he was in gear 7, as best he could recall, as it was a "long time ago". That evidence is inconsistent with his evidence that the Splitter Control Button was inoperative and that gear 7 could not be engaged. This discrepancy was not the subject of any cross-examination. The only conclusion that I can draw is that that was an honest mistake for gear 6 or gear 8, Mr Finch having forgotten what gear he was actually in. He approached the right-angled bend to the left. It "seemed to come up very fast". The ride was "bumpy" by which I infer he meant that the road surface was uneven. He slowed "dramatically" by use of both the compression brake and the air brakes. He then approached the right-angled bend to the right. His experience of the first bend had made him "wary". He had to brake again at the second bend, but not to the extent that he had at the first bend. At the second bend he again used his compression brake and the "foot brake", the air brakes. At this stage he believed that he was driving with low beam lights. His normal practice was, when coming out of a bend, after slowing down to take the curve, to drop back one gear in order to accelerate, to increase speed. If he had gone into the curve in gear 8 he would have to drop back to gear 6.

54 As he drove northwards, Mr Finch approached the intersection which we now know to be the intersection of King Street and Wynyard Avenue. He could see a vehicle on his left, coming towards the direction in which he was travelling, in Mr Finch's words, "coming towards me". He had identified this vehicle by its headlights. Mr Finch frankly conceded a poor ability to estimate distances. The unit of measurement he preferred was a "truck length". He estimated that when he saw this vehicle it was two truck-lengths from the intersection of King Street. The rig Mr Finch was then driving was 15.5m. At p. 566.42 Mr Finch said that by "truck length" he included the trailer. Accordingly he saw the vehicle in Wynyard Avenue when it was about 30m from King Street. His evidence continued thus: "Q. Did you watch the headlights and the passage of the car after you first saw it? Did you keep it under observation? A. Yes. Yes. Q. What did that car do, to your observation? A. It come towards the intersection. I slowed down and then I could tell that that car was slowing down and it stopped.

Q. And where did it stop? A. In its road.

Q. In Wynyard Avenue? A. Yes. Q. What, near to the intersection? A. On the intersection, yes.

Q. And it gave way to you? A. That's right. Q. Before it stopped, were you some distance short of the intersection? In other words, had it stopped to allow you to proceed through? A. Yes, that's right. Q. And you said that you'd slowed up when you saw the lights. How did you do that? A. I actually braked. Q. After you saw that car stop, what did you then do, so far as driving your truck was concerned? A. Accelerated on again.

Q. How did you do that? A. By just putting my foot on the accelerator and if I'm allowed to say, go back a gear."

55 Mr Stitt QC then asked Mr Finch what his belief was as to the speed limit. His belief was that it was 80 kph. The basis for his opinion was that there was no kerbing and guttering, the surrounding land was "bushland" or "acreage" and he did not recall any street lighting. In chief, Mr Finch gave no evidence of his actual speed. In Camden Local Court on 10 December 2002 he had said on oath that he was travelling "around 70 to 80 kilometres" (Exhibit CC p. 65.14). Shortly after that he said: "I know I wasn't going any faster than 80 because I was still on what they call deep reduction"

56 The speed at which Mr Finch was travelling is a highly contentious issue in these proceedings, the subject of other evidence (skid marks) and expert evidence. I shall discuss this issue separately. I merely record at this stage that in cross-examination by Mr Semmler QC, Mr Finch said that he was travelling at 65 to 70 kph "in that area", meaning the area prior to the collision.

57 After passing the intersection with Wynyard Avenue, Mr Finch changed gears up again (p. 565.09). He continued driving northwards along King Street. As he approached the next intersection, he saw "headlights coming on my left". The headlights were those of the Ford.

58 None of the occupants of the Ford could, obviously, give evidence. Travelling behind the Ford was a two-tonne Isuzu truck being driven by Mr Adam Zadro. Mr Zadro gave evidence, being called by Mr Semmler QC. He estimated that it was 5:50pm, it was "just on dark". He is the gentleman who did not recall there being street lighting in Devonshire Road.

59 He was familiar with the intersection. It was on his regular route between his home at Harrington Park and his workplace at Granville, a route he had been regularly travelling for three years.

60 Mr Zadro estimated that he was 70m behind the Ford. As he approached the intersection he saw a truck (obviously Mr Finch's) approaching the intersection along King Street from the south.

61 Mr Zadro was travelling between 70 kph and 75 kph and was not gaining ground on the Ford. Mrs Estephan must have been travelling at the same speed. As the Ford and his Isuzu approached the intersection Mr Zadro saw the brake lights of the Ford illuminate, indicating that the Ford was slowing as it neared the intersection. The Ford did not stop at the intersection (p. 255.26). He was 60m behind the Ford when the collision occurred. As far as Mr Zadro was able to observe, the Ford kept to its correct side of the road up until the time of the collision.

62 As to the visibility of the truck, Mr Zadro gave this evidence: "Q. When did you first see him, the truck, heading north? A. I would have noticed the truck just as we were coming upon the intersection at King Street. The one thing that really caught my eye was the clearance lights on the truck, that really caught my eye at the intersection. I could see the green - sorry, not the green - the orange lights on the truck coming down King Street.

Q. They're along the side of the truck? A. On the side of the truck, yes. Q. Can you be more specific - perhaps if I can ask you this. Was there anything obstructing your view across the paddock between Devonshire Road eastbound and King Street? A. No, as we approached the intersection it was a fairly clear view of the traffic coming down."

63 As far as Mrs Estephan is concerned, the following inferences can be drawn: (a) In the last section of Devonshire Road, she was initially travelling between 70 and 75 kph, below the speed limit applicable on Devonshire Road, 80 kph; (b) as she approached the intersection, she braked, reducing her speed, but did not stop; (c) as she was familiar with the intersection, she knew she had priority over the vehicles travelling north along King Street; (d) she would have been able to make the turn into King Street in 2 seconds (see [38] above); (e) her driving record was not put into evidence to suggest that she was either a reckless or careless driver, anything other than an ordinary prudent driver; (f) at the risk of my being accused of stereotyping, as the mother of three young children, all passengers in the Ford, she was unlikely to take a foolhardy risk in her driving; (g) the approaching truck would have been obvious to her, but her view of the truck was more acute than that of Mr Zadro and the evidence of Mr Jamieson recorded at [41] must be borne in mind.

64 Before going on to discuss the circumstances of the collision, it is convenient at this point to record those who gave expert evidence: (1) Senior Constable Aram Holger Kraefft The Senior Constable was a member of the Metropolitan Crash Investigation Unit and the officer in charge of the investigation of this collision. He has the following qualifications:

(a) Associate Diploma in Policing; (b) Investigator's Course Certificate; (c) Certificate of Emergency Management; (d) Certificate of Traffic Accident Investigation (North Western University, Illinois); (e) Certificate IV, Crash Investigation (NSW Police); (f) a Certificate of Attainment of Fundamentals of Collision Dynamics and Investigation (NSW TAFE) completed between January and June 2002; (g) a Certificate for at-scene traffic crash and traffic homicide investigation (University of North Florida). (2) Mr John Jamieson Mr Jamieson is a consultant forensic engineer. His curriculum vitae is part of Exhibit M. It is impressive. He has particular expertise in many fields of traffic engineering and crash investigation. Mr Jamieson was qualified by Messrs Carrol and O'Dea. (3) Mr Roger Stuart-Smith Mr Stuart-Smith is a consultant traffic engineer. His curriculum vitae is part of Exhibit T. He has the same post graduate degree as Mr Jamieson: M.Eng.Sc (Traffic and Transportation) UNSW. Since 1993 Mr Stuart-Smith has been an independent consultant in Crash Reconstruction and Analysis and Road Safety Engineering. He was qualified by NSW Police Service, probably for the prosecution of Mr Finch (4) Mr William Bailey Mr Bailey is a mechanical and biomechanical engineer. His curriculum vitae is part of Exhibit T. He has been involved in the analysis of over 900 serious road vehicle collisions. He has used his analysis for his special interest in the design of vehicle occupant protection systems and seating but his analysis involve the same disciplines as those applied by the other experts in these proceedings. Mr Bailey was qualified by those instructing Mr Stitt QC.

65 All four experts agree on the point at which the two vehicles collided. Senior Constable Kraefft sought to distinguish between the point at which two vehicles first meet in a collision (point of impact, POI) and the point of maximum engagement (PME). The PME "means the area where the two vehicles have enacted [sic] their forces upon each other to the greatest degree, where there's basically then a transfer of energy onto each other" (p. 66.48). Relevantly, this would not be the point where the truck's bull bar first collided with the plastic or thin metal panel of the Ford, but a more substantial structure such as the chassis or engine block. This is a subtle difference of little moment in the present matter. Mr Bailey pointed this out in cross-examination (p. 709): "Q. You gave some evidence the other day in relation to some questions that Mr Stitt asked you about maximum engagement. Do you recall that expression being used when Mr Stitt was asking you questions? A. Yes. Q. You smiled at that time. Is this the position, that in your view there is little, if any, difference between the point of maximum engagement and the point of impact? A. No, I smiled because in my work there's a very critical analysis that occurs of about a tenth of a second, and police use that term, often erroneously. I just prefer a simpler expression 'of point of impact', that's all. I didn't mean to infer anything more than that. Q. No, I wasn't suggesting anything bad by some token. I was just seeking clarification as to whether you thought they were one and the same thing. Is it the situation that you don't consider them one and the same thing, but the difference in terms of time is very very short? A. Yes, I agree with that."

66 Not only is the time difference between POI and PME momentary, but so is the distance involved. Like Mr Bailey, I shall use the term POI. As I earlier said, mirabile dictu, all four experts agree on the POI. It was on the eastern side of the carriageway of King Street. The parts of the vehicles which collided, are also clear from the photographs taken by the Police after the collision. The right hand side corner of he truck's bull bar first collided with the right hand side of the front of the Ford, left of the front of the wheel arch. This is conveniently set out and illustrated with the marked copies of photographs from Exhibit B in section D5 (pp. 10 - 13) of Mr Bailey's report (Exhibit 7).

67 All four experts agree that the Ford was wholly on its correct side of the carriageway at POI. This was illustrated by Senior Constable Kraefft by placing a piece of yellow paper on (eventually glued on) Exhibit E. The same point is made in Figure 2 of Mr Stuart-Smith's report (Exhibit T) and Figure 15 in Mr Bailey's report. Those opinions are consistent with the evidence of Mr Zadro that, as far as he could perceive, the Ford kept to its correct side of the carriageway. The only evidence to the contrary is that of Mr Finch. He drew on a copy of Mr Stuart-Smith's Figure 2, a rectangle in blue ink setting out his recollection of where the Ford was. This allows for the same POI but places the body of the Ford at a more acute angle to his vehicle, such that only the front left tyre of the Ford and half of the right hand side of the vehicle are on the correct side of the carriageway, as if Mrs Estephan had "cut the corner". This is the aspect of Mr Finch's evidence that I am unable to accept. One must bear in mind the mechanism of the collision. This is conveniently summarised by Mr Bailey thus: "After the initial impact, the large downward component of the contact force from the right side of the bull bar, acted to force the sedan downward so that many projecting areas came into contact with the roadway causing the gouge marks indicated on the police plan. The downward compression onto the roadway also prevented the sedan from moving away from engagement, so that as the front of the truck continued to override the right-front of the sedan, the sedan rotated anti-clockwise so that more of the right side came into direct contact with the bull bar as the forward speed of the sedan was arrested and its velocity was rapidly changed from mainly southward at perhaps 25 to 35 km/hr, to the speed of the truck in a 'north-easterly' direction. The time period for the main impact would typically be less than 1/10 th of a second, during which time nearly all the visible damage would occur and after this, the vehicle simply pushed ahead of the truck (as it slid and continued to rotate anti-clockwise) and the station sedan came to rest against the pole when almost stopped."

68 Mr Bailey's estimate of the time taken for the damage to be inflicted is also pertinent. The damage occurred in less than one-tenth of a second: very, very quickly. The Ford rotated anti-clockwise and ended up abeam of the front of the truck which then pushed the Ford forwards for about 16m to its resting place. The Ford would have taken very little time to move from its position at POI to its position abeam the truck. Sitting in his driver's seat, Mr Finch would have a view of the Ford as his truck pushed it forward for a much lengthier period of time. In my view, it is likely that that memory persists and, perhaps, painfully persists, in Mr Finch's mind. As I said earlier (at [46]) there is a good explanation for why he made the mark on what became Exhibit 4. I have no hesitation in finding that the Ford was wholly on its correct side of the carriageway at POI.

69 How did this collision come to occur? There are two eyewitnesses, Mr Zadro and Mr Finch. Mr Zadro's evidence is helpful and I shall consider it first. Mr Zadro was asked to provide his assessment of the speed of the truck which he saw approaching the intersection. His evidence before me is that the truck was travelling around about the speed limit, which was "80 kilometres an hour on King Street." Leaving aside Mr Zadro's erroneous but understandable view as to the speed limit, he made it clear in his next answer that that assessment was based on his experience as a driver over 8 years. However, earlier, Mr Zadro provided a lower estimate of the truck's speed. He made a statement to the Police on 27 May 2001, two days after the collision. This is set out on page 16 of Mr Jamieson's report of 7 October 2004. In that statement he "estimated this truck was travelling about 70 kilometres per hour." The same statement is set out on p. 7 of Mr Bailey's report. Curiously, no one cross-examined Mr Zadro about this and, just as curiously, no objection was taken to those parts of the reports containing Mr Zadro's statement. However, Mr Zadro was called by Mr Semmler QC, as was Mr Jamieson, so theoretically, this is a problem in Mr Semmler's case. From my point of view, the statement made by Mr Zadro is more likely to be accurate, made 2 days after the collision, than his recollection in the witness box, nearly five years later.

70 Mr Zadro's evidence continued: "Q. Did you notice anything about the speed of the truck or the movement of the truck as it approached the intersection? A. Yes, that's what really caught my attention, that the truck didn't appear to be wiping any speed off as it approached the intersection.

Q. It didn't appear to be slowing down? A. No. Q. To what extent did it maintain, to your observations, the same speed all the way through? A. Yes, it seemed to have maintained a consistent speed as it approached the intersection itself.

Q. What did you see occur? A. I saw the collision of the truck and white Falcon. As the Falcon made the right-hand turn, the truck came through the intersection, and just before that point of time it occurred to me that the driver of the truck didn't understand the intersection clearly - that's the thoughts I remember going through my mind. That intersection seemed to be a tricky intersection, if you like, and if you weren't familiar with it, there was going to be some dramas."

71 Leaving aside other evidence Mr Zadro gave about the "tricky intersection", Mr Zadro gave this piece of evidence in cross-examination by Mr Windsor: "Q. You didn't observe the truck to reduce speed at all between the time that you first saw it and the time that the collision occurred. Is that correct? A. I momentarily believe I saw the truck make an attempt to stop in the last moments."

72 What can be gleaned from Mr Zadro's evidence is that he saw the truck approaching at a speed of between 70 to 80 kph, noticed that it didn't slow when he expected that it would have, but did attempt to stop "in the last moments".

73 I now return to Mr Finch's evidence. His evidence about the speed he was travelling at needs to be further considered. I raised the issue above at [55] and [56]. In chief, Mr Finch was shown photograph B28, a photograph of the gear stick of his truck. It had not been moved from the time he first braked. He said that the truck was in gear 6. He gave evidence these reasons for saying that: "Q. Now, sixth gear; how can you tell his Honour that? What are the indicators that allow you to say that? A. Either (1), by the position of the gear stick. Q. Yes. A. And by (2) the marks around the gearstick. I can say the marks on the left are from the reverse, because reverse was right over and up.

Q. Yes. A. The marks directly in front of the gear lever is from sixth and the mark - the wear mark on the boot, as they call it, around the gearstick to the right was the next gear over. Q. Which is? We can work it out from the - - A. Eighth. Q. Eighth? A. No, sorry, it would be the 10th."

74 In cross-examination he stated his opinion that he was travelling 65 to 70 kph and was then asked to say why: "Q. Why do you say that? A. For one, well - does it matter where I start?

Q. In your own words, just tell us why you have that view? A. Well, (1) the gear was in, the truck wouldn't allow it to go - or the revs of the motor wouldn't have allowed it to go that fast, unless it was running off a hill.

Q. Wouldn't allow it to go what? A. Over that speed. Q. Why wouldn't the revs of the motor allow it to go over 65 to 70? A. Well, the motor would have to rev too hard. The motor is governed at a rev of 2100 revs. At 2100 revs, the motor just won't rev anymore off the pedal. It just - it wouldn't even matter if it was in neutral sitting there with your foot on the throttle, it wouldn't rev any harder. Q. That's based on a belief you have as to the gear that you were in? A. That's right. Q. What gear do you believe that you were in as you were driving along King Street before you see this other vehicle? A. Sixth.

Q. What's the basis of that belief? A. Where the gear lever is in that photo, there is another gear you can use in that position, which is seventh. But that means using that splitter as we talked about, and the splitter never worked in the whole nine months I drove the truck, and I believe months before that even. It wasn't a highway truck as such, it was a round-town truck, so it didn't have to go fast.

Q. The splitter can change the gear between six and seven? A. That's right. You don't move the gear stick at all, you just flick the red button, as we were talking about before. Q. But you say that it couldn't have been in seven because the splitter never worked. A. That's right. Q. But your belief now, as you give your evidence, that the truck was in gear 6 is based entirely on what appears to be the position of the gear lever in the photograph you've seen? That's right, isn't it? A. In - pardon, excuse me?

Q. That's right, isn't it? A. Can I hear that question again. Q. Your belief that you were in gear 6 is based entirely upon the photograph you have seen? A. One of the beliefs, yes.

Q. What's the other belief? A. That the road was rough. I'm not sure where the roads go - I'd never been there before - and to be going in another gear, I would have been in just the wrong gear for that truck. All trucks are different, but yes, for the gearbox that truck had."

75 At pp. 595 to 601 Mr Finch was cross-examined about "deep reduction", a term which he used in the Local Court. A distinction must be drawn between what Mr Finch understood by that term and what others might understand by that term. Mr Bailey was cross-examined about the same issue at pp. 691 - 693. His understanding was that it was a very, very low gear, often called a "crawler gear" used "to get a heavy vehicle moving", to start a heavy vehicle moving on a steep incline and that the vehicle would be unlikely to exceed 12 kph. He said that there was "no possibility whatsoever that it was in deep reduction" meaning Mr Finch's truck prior to the collision. Mr Finch however merely used the term to mean use of "a lower gear". At p. 600 Mr Finch agreed that he had said in the Local Court: "I know I wasn't going any faster than 80 because I was still in what they call deep reduction, and there's low range and then there's overdrive - well, I wasn't in overdrive."

76 I have carefully read and re-read Mr Finch's evidence concerning "deep reduction" and there is nothing in his evidence before me which is inconsistent with his evidence in the Local Court or inconsistent with his being in gear 6. Mr Finch merely appears to have misused the term "deep reduction", as Mr Bailey and, perhaps many others, understood it. His evidence before the Magistrate and before me is consistent: he was not in low range (gears 1 to 5) or overdrive (gears 7, 9, 11 and 13) which are indeed called 'overdrive' in the technical specification (Exhibit 1). "Deep reduction" is merely a red herring. In my view it does not impinge Mr Finch's credibility as he adequately explained his understanding of the term, no doubt truck drivers' jargon, which he may have picked up but misunderstood.

77 During his cross-examination concerning "deep reduction" Mr Finch was asked to state the maximum speed he could do in gear 6. His answer was: "Well, if I'm allowed to say, I don't honestly recall, but by trying to remember the best I can, I would say not over-revving the truck, you'd best say, 70 kilometres an hour, at best. If you drove it, like, on the governor type thing, which we weren't allowed to do."

78 In re-examination, Mr Finch explained that the governor prevented the engine developing more RPM than was needed to drive the vehicle above 70 kph in gear 6.

79 Looking at Mr Finch's evidence concerning speed in its entirety, he asks me to believe that he was driving at about 70 kph. That is consistent with what Mr Zadro told the Police on 27 May 2001. It is an issue to which I shall again have to return.

80 It is clear from Mr Finch's evidence both before the Local Court and before me that he did not see the modified T intersection warning sign. His denial of seeing it was more emphatic before the Local Court than before me, but that is explicable by the fact that his evidence to me was given some three and a half years later. When he passed that sign he was 85m from the intersection.

81 Mr Finch estimated that he was "two truck-lengths", about 30m, from the intersection when he saw the Ford's lights. After the collision the Police placed cones along King Street and at other sites relevant to the collision for the purpose of the Photogrammetry Survey. Those cones are numbered on Exhibits C and E. 30m from the intersection is about 2m south of cone 8. On any view of the expert evidence it is likely that Mr Finch saw the lights before this point but his evidence points to a shorter distance than the longer distance.

82 In chief, Mr Finch said that when he saw the Ford's headlights he slowed down by removing his foot from the accelerator, thus engaging the compression brake. Not having seen the modified T intersection sign and for other reasons, Mr Finch thought his route was straight ahead. He thought he had priority over a vehicle approaching from a side street on his left. He told me that he saw streetlights "way up ahead" which indicated to him that the road went straight ahead. He was observing the headlights approaching from his left and then he perceived that the approaching vehicle "wasn't going to stop", to give way to him. This perception was "seconds" before the impact (p. 568.03). His evidence in chief continued: "Q. What in fact happened that you observed? A. At the intersection?

Q. Yes. A. The car didn't stop. It come straight out.

Q. What did you do? A. Everything I could.

Q. But I want you to tell us what did you do. A. I was on the brake obviously and just trying to get away from the car coming from my left. Q. I want to take each of those things at a time. When you realised or made a judgment that the car was not going to stop, what did you do in relation to the brakes? A. Put my foot on it as hard as I could. Q. At that point when you put your foot on the brake as hard as you could, where was the car at that stage? Had it come to the intersection or not? A. Yes. Q. It had come into the intersection. What was it then, that caused you to put your brakes on as hard as you could? A. Because I was there. It was blocking my path where I was going. Q. You've told us about the brakes. You said that you tried to get away from the car, or words to that effect. What did you mean by that, and what did you do? A. I braked heavily and tried to turn to my right to get away from the vehicle. Q. When you braked heavily, I know it's difficult, but how did the truck react - truck and trailer react - under that braking condition? A. It bounced a lot. Everything got very noisy, as in I don't know what the noises were, but everything got noisy. It's about the only thing I can say. Q. When you put the brakes on in the way you've described, did that affect your ability to steer the truck, or do you not recall? A. No. I don't recall on that occasion, no. Q. Again, I'm sorry to have to ask this, but in your judgment what period of time elapsed between you seeing the car in the car intersection and jamming your brakes on and actually colliding with the car? A. I would say it felt like seconds to me."

83 In cross-examination, Mr Finch conceded that he saw no signs to alert him to the existence of Devonshire Road, prior to seeing the lights of the Ford. He did not recollect seeing the DWBL. He said he had the compression brake on for "2 or 3 seconds" prior to realising that the Ford wasn't slowing down and then applying the footbrake. He was then questioned about applying the footbrake and he gave this evidence: "Q. When you say, 'I was on the intersection when I braked heavily- -' A. I was - no, the car was on the intersection. The car was coming across the intersection, and I was, I don't know, a second away or half a second - how do you measure that?"

84 Later when being pressed about the times between certain stages of the collision, Mr Finch said that "the whole thing, it felt like seconds." Later Mr Semmler QC questioned Mr Finch about the fact that he had not told the Magistrate about the compression braking or "slight braking" prior to applying the footbrake and also being in gear 6. His response to the question about "slight braking" drew this response: "I don't recall the judge or anybody at that court asking me, like, put it in such detail as you did, that's why I mentioned it to you."

85 It is probably more explicable by the fact that Mr Finch was not assisted at the Local Court by Mr Stitt QC, Mr H.W Stitt and Mr Heazlewood! I draw no adverse inference against Mr Finch because of an issue not being addressed in the Local Court, especially when the onus and standard of proof are different. Various cross-examiners put to Mr Finch, as they were bound to do, the conclusions reached by Mr Jamieson as to his speed and distance from the intersection at the time he commenced braking, but he disagreed with the various propositions put to him. This interchange occurred during cross-examination: "HH: Q. You did tell me earlier that you were steering to the right seeking to avoid a collision? A. Once I seen the vehicle, yes.

Q. Had you thought of swerving to the left? A. I ask myself that everyday, your Honour." Mr Finch's answer was given very remorsefully and he was upset at that time. This is a very frank admission against his interest which has weighed heavily with me in assessing Mr Finch's credibility.

86 At this stage one can discern from the evidence that the immediate causes of this collision were: (a) Mrs Estephan knew she had right of way at the intersection, and she exercised it; (b) Mr Finch erroneously believed that he had right of way; (c) only when Mr Finch perceived that Mrs Estephan was not going to yield way to him and was going to turn right into the intersection, did he apply his footbrake, braking hard enough to seek to avoid the collision; (d) when the Ford emerged on his left from Devonshire Road, Mr Finch tried to turn or veer right to avoid it; had he continued straight ahead or attempted to drive to the left, this collision would have been avoided.

The remaining contentious issue of fact concerns Mr Finch's speed.

87 Before I can deal with the issue of Mr Finch's speed which requires me to deal with some of the expert evidence, it is necessary to discuss the process leading to the Photogrammetry Survey and certain aspects of it. After leading evidence from Senior Constable Kraefft of his arrival at the collision site at 8:15pm on the day of its occurrence and of his inspecting the site, Mr Semmler QC adduced this evidence: "Q. So having examined the roadway and the scene generally, did you then make arrangements for the police photogrammetry unit to attend? A. Yes. Q. What is that unit? A. It's the unit run by forensic services and they come out and take what's called a terrestrial survey of the collision scene. The photogrammetry, without being an expert in that field itself - but briefly, if I may, it's the use of obtaining a scaled diagram of the collision scene at a bird's-eye view. It's the use of two cameras that act as our eyes do and are able to actually pinpoint on a focal point and that's what can give you your accuracy in your scale.

Q. From those photographs a plan is then drawn up. Is that right? A. Yes. Q. Is this the end result of the work of the photogrammetry unit, this plan? A. That's correct."

88 Exhibit C was then tendered. It is to scale. The copy of it which is Exhibit E is not to scale. As I have earlier stated, for the purpose of making the Photogrammetry Survey, cones were placed along King Street and around the accident site and these have been numbered, for reference. The plan is not coloured, so that all markings on it are black. The plan shows certain topographical features, the edge of the pavement of the roads, the edge of the shoulders of the roads, the DWBL, power poles and the position of signs and the final resting places of both vehicles. The plan also shows skid marks. The skid marks were marked by Senior Constable Kraefft with lime to highlight them for both the photographs and the plan.

89 What skid marks were identified by Senior Constable Kraefft and were put on the plan? The Senior Constable gave this evidence in chief: "Q. You placed this - did you yourself do it, put the chalk powder on the markings? A. Yes, I was helping out the - yes. Q. What markings did you put chalk powder on? Sorry, lime powder, yes, sorry. A. On any of the tyre marks that were visible at the scene of the collision and that I could determine were recent or fresh tyre marks. Q. Can I take it from that that you didn't discriminate between marks that have led one way or the other. It was just any apparently recent marks. A. It was to capture all of the evidence. Q. Why did you do that? Why not simply mark things that appeared to have some linear significance? A. Because there may be another tyre mark that may be involved in this impact and if not to include it would be to not include all the evidence. All the evidence, in my opinion, is relevant, whether it be subject to these proceedings or whether it is relevant or whether it is used or not, but it is - -

Q. Is it for more abundant precaution, really? A. Definitely. All the evidence is there. It's got to be captured properly.

Q. Now, you mentioned you marked only recent tyre marks. A. Yes. Q. How did you ascertain that the marks that you were putting the line markings on were recent? A. A number of characteristics that I look for in the tyre marks: firstly, the darkness or clarity of the mark; and secondly - and quite importantly - is the actual physical texture of the mark, the physical feel of the mark on the roadway. Could I clarify a bit?

Q. Yes, sorry, go on. A. When a tyre mark is deposited on a roadway, either through braking, acceleration, cornering, whatever - when that friction - the rubber is burnt off the tyre and deposited on the roadway. It leaves a rubbery feel, so that if you run your hand along it it's almost like running your hand along an eraser, a rubber eraser. You compare that to then the actual road surface beside the mark. The road surface itself has a completely different feel. That texture doesn't last long, particularly if there's other traffic going across there. They flatten out, bed it in, or rain comes along and so forth. So the rough, rubbery texture indicates that it's a very fresh mark, compared to something that feels much the same as the rest of the road. Q. Is that where we get the expression 'laying rubber on the roadway'? A. It could be, yes. Q. That the wheels screech and the car takes off; it physically leaves a particular layer on the bitumen? A. It does, yes. I mean, it does that not just under acceleration. As I say, there's other incidents - -

Q. Under deceleration? A. Deceleration, cornering, broadsiding - there's a number of different ways a vehicle tyre mark can be left on the road, depending on what the vehicle is doing itself. HH: Q. If violent enough and recent enough, you can still smell it. A. Definitely; and still see it too, sometimes, if you actually watch it in action. You see the smoke coming off from the friction of the tyre sliding on the roadway. The friction is creating heat. A by-product of the heat is smoke and the burning rubber smell. Semmler: Q. In respect of each of the tyre marks that you've marked with your device, to what extent did you test for this physical feel of the mark on the roadway? A. It's running your hand across it. It comes down to, as agricultural as it sounds, just the experience of knowing exactly what creates a tyre mark; and having done the experience myself through training processes, the experience of attending many scenes and doing that very thing is just a feel and touch test. You've got to get down on your hands and knees and crawl around and have a look. Q. And that's what you did? A. Yes. Q. All the marks, when you did that touch test, are they reproduced on that plan that's there in front of you, which is Exhibit C? A. Exhibit C, yes. Q. You mentioned the other indicium is the darkness or the clarity of the mark. What did you mean by that? A. The darker the mark, particularly if there is harsh braking involved, it will leave a darker imprint of the striations of the tread pattern on the road. Over time and weathering, the darkness fades, becomes duller, until eventually you just cannot see it any more, until eventually it wears away. It's not just done by the weather, it's done by other traffic driving over it; and, of course, the feel of it erodes very quickly. Q. When you say the feel of it erodes very quickly, in your experience, if you have a road like this with not continuous traffic on it, how long does it take before the mark has gone, or the feel of it has gone? A. I'd have difficulty answering that."

90 In cross-examination by Mr Stitt QC, the Senior Constable made a number of concessions: "Q. In relation to the skid marks and what you did in respect of them, let me suggest that this is what you did. You went out to the site at about 8.15pm, which seems to be the time from your notes. Does that accord with your recollection? A. Yes, I arrived there, yes. Q. You were unable to place the chalk or line markings until much later in the evening. A. Correct. Q. When you got to the point of doing that, you were not in any way discriminating between the various skid marks that were observable. Isn't that so? A. Yes, that's correct. Q. What you did, I suggest, was that you put chalk or line markings on every skid mark that you could see on the road, leading to the point of impact. A. On virtually every skid mark I could see, leading towards the area of impact and into the vehicle rest position. Q. And that you did not discriminate between various skid marks that led one way or another, did you? A. At the time, no. Q. So when the chalk markings were laid down, they were laid down in a non-discriminatory fashion? A. Yes. Q. They were laid down without any attempt - at that stage, on your part - to discriminate as to whether they were relevant or irrelevant to the crash? A. That's correct. I couldn't differentiate at that time, so I captured everything. Q. So that once the chalk marks were laid down, you had then as it were in your own words 'captured all of the evidence'. A. That's correct. Q. And it was only later that you came to analyse the evidence that you had thereby captured. Isn't that so? A. Yes. Q. So that any photograph of line markings, which simply shows the chalk marks, has to be looked at with care to determine whether or not it is relevant to the accident itself? A. Yes, everything has to be looked at with care."

91 Senior Constable Kraefft went on to admit that two elongated 'V' shaped skid marks on the eastern side of DWBL had nothing to so with this accident. They are highlighted on Exhibit E in red. The other experts are all agreed on that as well. This concession clearly raises the issue of which skid marks identified on Exhibit C are related to this collision? This route was regularly used by heavy vehicles. This "tricky intersection" (to use Mr Zadro's terminology) had been the scene of other accidents, near misses and a cause for many vehicles to brake suddenly to make the unexpected left turn into Devonshire Road. Many tyre marks had been laid down. One must bear in mind the evidence of Mrs Zajac which I canvassed at [13.15] above. Mr Stuart-Smith gave this evidence on this topic: "Q. Do you agree that it would not be unusual for there to be multitude skid marks laid down by heavy vehicles in the approach to this difficult corner? A. Yes. Q. Do you also agree that you would expect those skid marks to be on the left-hand side of the double unbroken lines? A. Yes. Q. Indeed, the very position that the skid marks are shown in the photogrammetry plan so far as the geometry of the corner is concerned. A. In the lateral positions, yes."

The modus operandi of Senior Constable Kraefft in gathering the "relevant" skid marks clearly had failings. One cannot, therefore, accept dogmatically, that all the skid marks marked on Exhibit C, other than those two about which the Senior Constable made the concession, are related to this collision.

Photogrammetry does have some limitations. They were highlighted by Mr Bailey in re-examination: "Stitt: Q. You said in the course of some questions this morning to my learned friend Mr Semmler - and I think you repeated it later - about the range of accuracy of photogrammetry plans. Do you remember saying something in answer to Mr Semmler when he was putting propositions to you particularly in relation to markings north of cone 4? A. Yes, I do. Q. What were you referring to when you said it - I think you said it depended on the range of accuracy of the photogrammetry plan. What were you referring to? A. When I attempted to scale the width of the tyre marks, given that there were four tyre marks in a line so that I knew the outer marks were the outer tyres in a reasonable interpretation, the marks seemed to be a narrower width than I would have anticipated for a heavy vehicle. They seemed to be about 2.1 to 2.2 metres whereas I'd expect there to be about 2.4, 2.45. Q. How does the accuracy of the photogrammetry plan impinge upon that? A. I assumed that as the marks otherwise had the characteristic of a heavy vehicle with dual wheels that in fact it was an inaccuracy in the way that the marks had been recorded and transcribed onto the written document. Q. Is there an accepted range of accuracy of photogrammetry plans on the expert community? A. I'm not sure that there is an objective standard, but the nature of the process where the photographs taken not from an aerial perspective but from a terrestrial perspective are manipulated to give a view as though they were an aerial photograph introduces a level of uncertainty about what's the actual position of things. In other words, what might be a narrow line in a photograph becomes quite a broad line when the photograph is transposed, and so there then becomes the subjective element in the person performing the operation as to where they then draw the line which we see on a plan. HH: Q. Just as an example of that so I'm clear, you're saying that that's the very vice we have with the line you've marked X on figure 13. A. Yes, your Honour. Q. Where the black marks are much, for example, wider than the white line. A. Yes."

92 To understand the expert evidence concerning the speed of the truck, one has to understand the phenomenon of skip skidding. Senior Constable Kraefft succinctly explained the phenomenon thus: "When an unladen truck or lightly-laden truck does not have the brakes adjusted properly and the truck is subjected to harsh braking and the wheels lock, and because of the unladen weight the trailer can actually bounce along the road. They're called skip skids, and the distance between those skid marks is usually about a metre."

93 Greater detail and other aspects of the phenomenon were given in the evidence of Mr Bailey: "Q. Are you familiar with what has been discussed in this case before His Honour of skip skids? A. Yes, skip skids or simply intermittent braking. Q. What is intermittent braking in those circumstances and how is it caused? A. It can be caused by a number of factors. The most likely in this case where an unladen tri-axle trailer was being towed was that as the truck initially brakes, a short time later air becomes available to the trailer brakes and they begin to actuate. The front of the trailer begins to sway which causes usually the last axle, but possibly the last two axles, to have reduced weight applied to the ground at the time that braking begins. Q. When you say 'reduced weight', do you mean reduced downward pressure? A. Yes. Perhaps I could give a slight illustration just in a very simplified form. If a tri-axle trailer was represented by the rectangle and tyres by three circles, I'll draw a bar here, as the vehicle commences to brake there's a force on the road which is causing it to slow, but the momentum of the vehicle, its centre of gravity, is somewhere above, so if these two forces - in a sense it's a bit like the front wheel tripping over the road, it reduces - it tends to cause this wheel to go up, this less so, and a downward force here. This is a dynamic effect which moves forward on the springs. The braking knows nothing of what's happening to the dynamics. It simply applies a brake pressure which is sufficient for the continuous state of braking which will happen shortly later. So what happens is that this wheel is - for the weight it's now carrying - the reduced weight it's now carrying the rear wheel now has too much braking pressure so that it locks very quickly, but it's not - it may not be physically in contact with the road continuously or it may be simply such light contact in the road that we don't see any marks. So that there's a - if we physically watch this rectangle as it braked, it would rotate about its - well, in fact you're going to be about this point, but rotate forward slightly until it achieves steady state. Once it achieves the steady state, then all three axles are locked, and it will then produce a relatively continuous mark along the roadway, so there's a dynamic effect which occurs and is particularly noticeable with that configuration of trailer.

Q. Particularly noticeable, I'm sorry? A. With that configuration of trailer at the initiation of braking I should say.

Q. So that dynamic mechanism which you've just illustrated - Stitt: Q. Perhaps I should tender that, your Honour. I tender the rough sketch plan. EXHIBIT #8 ROUGH SKETCH PLAN MADE BY MR BAILEY TO EXPALIN SKIP SKIDDING TENDERED, ADMITTED WITHOUT OBJECTION. Stitt: Q. The dynamic mechanism which you have just illustrated, and perhaps this is obvious, but does that cause a particular form or type of marking on the road? A. Yes, it does. Q. What is that form or type of marking on the road when that dynamic is in operation that you've just described? A. It causes an intermittent black line or tyre mark, a broken black tyre mark. Q. In your description to his Honour you then, after the skip skidding commence, said that the three wheels or three axles will eventually - I think you said earlier settle or become level or whatever phrase you used, and then the line, you said, becomes continuous. Is that accurate? A. Yes, it is. Q. When that state of dynamism is reached and the line becomes continuous, what mark or markings is then created on the road? A. There's a series of fairly heavy dark marks on the road.

Q. How does that mark differ or vary from the initial mark? A. The continuous marks will be darker, and they will only rarely show substantial variation in character along the road unless there are substantial changes to the road surface."

94 Mr Stitt QC then asked a question to which an objection was made and about which there was argument. Mr Bailey's evidence then continued. To understand this evidence one must know that photograph Exhibit B7 is a photograph of King Street, looking north from just south of cone 8, just beyond which there are skip skid marks and Exhibit V is an enlargement of that photograph. "Stitt: Q. I'll repose the question. If, under heavy braking, a truck and trailer of this type commences initially to skip skid and then the skidding mark becomes continuous, is it usual in those circumstances for the vehicle to recommence skip skidding whilst the braking is still - whilst it's still under heavy braking? A. No, no, it's not.

Q. Why is that? A. Because it's reached the state. I was going to say it's not - unless there's significant external stimulus, so it is possible. Q. What sort of significant external stimulus would bring about the resumption of skip skidding after there had been continuous braking - under heavy braking? A. It would usually by a significant irregularity in the road. Q. Would you look at Exhibit V and if necessary, Police Photo B7. Do you see any such significant feature on the road surface at or about cone 8, which would, in your opinion, bring about a resumption of skip skidding after there had been continuous skidding? A. No, there's nothing I can see on Exhibit V which would be at all likely to re-initiate skip skidding."

95 It is common ground between the experts that once skip skidding ceases it does not usually recommence. However it may. The evidence of Mr Bailey gives one example of what might recommence it: an irregularity in the road, and a generalisation as to a cause of recommencement: a significant external stimulus by which I understood him to mean a force or something that affects the dynamics of the braking vehicle.

96 In these proceedings, Exhibit C identifies two sets of skip skids. The first set commences near cone 4, 63m before POI. The second set commences a short distance north of cone 8, about 22m before POI. This has given rise to there being two theses as to Mr Finch's initial speed.

97 The expert evidence discloses a number of stages applicable to the truck prior to impact: (1) Perception / Reaction Time This is the period, measured in seconds, that it takes for a driver to perceive a danger and to react to it. Mr Jamieson allowed 1.5 seconds of this, Mr Stuart-Smith made no adjustment for it, and Mr Bailey allowed between 1 second and 1.5 seconds for it. As to the lower limit, Mr Bailey expressed this view in his report: "Because Mr FINCH had already detected the headlights in his field of view, it could be anticipated that the time taken to perceive and respond to the hazard which emerged, would be in the lower range of perception-response times. Whilst detecting continued movement of the headlights is not as discrete an event as the brake lights of a car ahead, it could still be anticipated that a driver could perceive and respond within approx 1 second of the vehicle continuing to move toward the intersection." That position is consistent with the evidence given by Mr Finch that he noticed the Ford's headlights and only when he perceived that it was not slowing down sufficiently to give way to him that he braked hard. (2) Brake Latency Time This is the time allowed between the first application of the footbrake for the airbrakes to operate. Mr Jamieson allowed 1 second, Mr Stuart-Smith did not consider it, and Mr Bailey allowed 0.5 seconds for it. (3) Braking Time Prior to Impact This of course, depends on the initial speed, which must be gauged from the skid marks which raises the issue about the skip skid marks.

98 The drag factor (g) is relevant to the considerations made by the experts. It is best explained in a footnote on page 23 of Mr Jamieson's report of 7 October 2004: "Fricke [ Traffic Accident Reconstruction , North Western University, Illinois] (1990) suggests that a normal sedan car is able to brake on any bitumen at a rate of between 0.65g and 0.85g (where 'g' is the acceleration due to gravity). Heavy vehicles are known to brake at significantly inferior rate - typically at about 0.5 (ibid)."

It represents the drag factor between the tyres of the vehicle and the paved road.

99 In his report Mr Jamieson allowed a "conservative" range of 0.35 to 0.45 because the post-collision inspection by Senior Constable Henville suggested that the suspension of the truck was faulty and loose and therefore inefficient at holding the tyres on the road and because the truck tyres were "worn" and because the pavement was only "fair".

100 In chief, Mr Jamieson said this of his higher rate: "The reason I use 0.45 is because the 0.45 rate would be acceptable for registration purposes and if an RTA inspector inspected this vehicle and determined it was able to brake at a rate of 0.45[g], they'd pass it for registration."

101 In cross-examination, he was asked about his statement that the truck's tyres were "worn" and had drawn to his attention Senior Constable Henville's statement that all the truck's tyres "displayed roadworthy tread depth" and he was unable to state what gave him the "impression" that they were worn (p. 357). That, in my view, undermines his lower range for the drag coefficient. In re-examination Mr Jamieson said that if the truck were fully roadworthy he would adopt a deceleration rate between 0.45g and 0.5g.

102 Mr Stuart-Smith said in his report of 3 May 2002 at p. 23: "A typical deceleration factor for a skidding truck is likely to be within the range of 0.45 to 0.55, allowing for poor performance brakes at the lower end of the range".

There is no acceptable evidence that the brakes of Mr Finch's truck were "poor performing".

103 Mr Bailey assumed an average braking rate of 0.5g. That is the 'typical' figure for heavy vehicles provided by the text cited by Mr Jamieson, to which I have referred. Were it necessary for me to make a finding as to the appropriate deceleration rate, I would adopt 0.5g, the norm rather than anything less.

104 There are two theses advanced by the experts as to Mr Finch's initial speed. Those theses are based on the commencement of skip skidding by Mr Finch's truck, firstly near cone 4 (63m) and secondly near cone 8 (22m).

105 The methodology used by the experts is the same. The first part of it is to assess the speed of the truck at POI. This process is set out by Mr Bailey in his report thus: "The speed of the truck at impact can be assessed by:

s using tyre and scrape marks from both vehicles leading from the point of impact to the rest positions to indicate an average deceleration rate s applying standard physics to relate an average deceleration rate for a distance to give a post impact speed s assuming or calculating the speed loss which would occur during the impact as energy was lost to produce vehicle damage and momentum was converted from the vehicle's initial velocities (north and south) to a combined momentum (northeast)."

106 One essentially works backwards from the ultimate resting place of the vehicles to the point of impact. Once the speed at impact is calculated, one then looks to the commencement of skidding and then backwards to the point at which the truck driver first perceived the danger. This process will provide both a speed when the danger was perceived and a time to the impact. The first part of this process has in it an intuitive element, assessing the loss of energy of the moving vehicles from the damage to the vehicles.

107 Mr Jamieson arrived at an impact speed of 55 kph, Mr Stuart-Smith between 55 and 60 kph, and Mr Bailey at 50 kph. Mr Jamieson's reasons are set out in p. 22 of his report of 7 October 2004 and Mr Bailey's reasons at p. 22 of his report. Mr Stuart-Smith's reasons (p. 23 of his report) are scant. If it be necessary to choose between Mr Jamieson's reasons and Mr Bailey's reasons, I would prefer Mr Bailey's reasons and therefore his assessment of impact speed as his reasons are more detailed, in my view more convincing and lack the protestations of "conservatism" towards the truck driver which occur a number of times in Mr Jamieson's report.

108 First Thesis On this thesis, the skip skidding commencing near cone 4 was laid down by Mr Finch's truck. Using the calculations based on a drag coefficient of 0.45g, Mr Jamieson calculated a braking speed of 93 kph. Mr Bailey also calculated 93 kph, although his input data to the formula are different to those of Mr Jamieson. Mr Bailey also calculated 97 kph, but that is based on an assumption that the skip skid marks were left by the rear wheels of the truck and not the rear wheels of the trailer. The expert evidence in general prefers the view that the skip skid marks were left by the rear wheels of the unladen trailer. Mr Stuart-Smith assessed the speed as "in excess of 90 kph". He also provided an estimate on the assumption that the truck was not skidding until it crossed the centreline, an assumption that the evidence does not allow me to make: how can a skid mark be made, if a skid is not being made? Mr Stuart-Smith did not take into account a number of factors which would indicate that the actual pre-braking speed was much greater. Consider this evidence and interchange: "Q. Your conclusion that it was probably travelling in excess of 90 kilometres an hour on the approach, does that fit with both the .45 and the .55 deceleration? A. That's using the lower deceleration factor of .45.

Q. Can you tell us the figure if it was .55? A. Close to a 100.

Q. Close to 100 kilometres an hour? A. Yes. Q. Do your calculations take into account the phenomenon, the name of which escapes me now, whereby there is very effective braking in the moments immediately before the skidmarks are created on the road? A. Yes, I understand what you mean. There's slowing of the vehicle before the wheels lock and obviously - and that happens before the commencement of any skidmarks, and no, I didn't take into account any of that slowing.

Q. But it is a recognised phenomenon, is it not? A. It is, yes. Q. What effect would that have on your estimate of probable approach speed? A. Well, it means that they are conservative. That the actual speed would have been more than my calculated speeds, based on the assumptions I made. HH: Q. What was that period of time called? I know we've got the reaction time. What was the other period? Semmler: Free braking - no, not free braking.

Q. Do you know what it's called, Mr Stuart-Smith? A. Well, there's just pre-braking slowing and there's brake-lag. Brake-lag occurs in heavy vehicles which is basically the time from when the brakes are applied and the time for the air pressure to work through the system for the brakes to operate.

Q. Right. But you did not take that into account? A. No. But, basically, it just means that the brakes are slowing the vehicle before they lock and I really just refer to it as pre-skid slowing. Q. Another factor which would bring about pre-skid slowing would be if a device on this truck were activated whereby the engine slowed the vehicle down once the accelerator was no longer depressed. Do you understand what I'm describing? A. Yes, like exhaust brakes, Jacob brakes. That sort of thing, yes.

Q. Compression brakes? A. Yes. Q. If the compression braking capacity of this truck were activated, that would cause a slowing of the truck, even before the driver's foot reached the pedal and the pedal pressure caused the wheels to stop or slow down? A. Yes. That's correct.

Q. Have you factored that into your calculations? A. No, I haven't taken it into account. Q. If that phenomenon were in operation to that extent, your estimate of approach would be conservative? A. Correct.

Q. The speed would have been greater? A. Correct. Stitt: More than 100? Semmler: Probably up to 110. Stitt:120? Perhaps 150. HH: We'll be crossing the [sound] barrier soon, Mr Stitt."

109 This thesis provides the following times between the first perception of the risk and the collision: Jamieson: 4.9 seconds Bailey: 3.9 seconds

The difference between these 2 times is the greater Perception Reaction Time used by Mr Jamieson (1.0 v 0.5). However Mr Bailey used the drag coefficient of 0.45g and if 0.5g were adopted both his pre-braking speed and the time would be greater.

110 Second Thesis On this thesis the skip skidding commencing near cone 8 was the first skid mark laid down by Mr Finch's truck. Mr Bailey calculated that the pre-braking speed was 58 kph assuming that the skip skid marks were left by the rear wheels of the trailer. That gives a pre-impact braking time of 0.5 seconds and a time between the first perception of danger and the collision of 2 seconds.

111 Objections to the Second Thesis In re-examination by Mr Semmler QC, Mr Stuart-Smith raised essentially four reasons why the second thesis should not be adopted, those objections being based on the skid marks themselves. I granted leave to Mr Stitt QC to further cross-examine him on this issue. I shall discuss these objections separately. (1) There are no skip skid marks on the left hand side Mr Stuart-Smith said he could not see a left side skip skid mark corresponding with the right side skip skid marks which he highlighted blue on Exhibit E (p. 498) but later in re-examination conceded that left-sided skid marks may not have been sufficient for the Police to be able to detect and record them. He said that that was "the most likely explanation" (p. 506). In further cross-examination he was shown Exhibit V, a blown up copy of photograph Exhibit B7 which shows on the on the left side of the skip skid marks a black parallel line which appears to me to show 2 skid marks, one on top of the other, a continuous light black line and a darker intermittent line, which has been marked with a continuous white line of lime. This evidence was given: "Q. Do you agree with me that, looking at Exhibit V, it's not accurate to say that that line is a continuous skid mark, is it? A. Look, you can't really tell whether it's continuous or not there. I agree with you it's not accurate to describe it as having a continuous density of blackness. Q. What it does show is that there is varying density of blackness in short lengths down the length of the line as marked with chalk. A. Correct. Q. Entirely consistent with the pressure of the wheel being down and then up and then down and then up. In other words, greater pressure followed by lesser pressure followed by greater pressure followed by lesser, downward pressure. A. Yes, it would be consistent with that. Q. That is the classic skip-skid dynamic, is it now? A. No, the classic skip-skid would have corresponding marks- - HH: Q. No, 'The classic skid-skip dynamic', was the question. Stitt: Yes, I - yes Q. That would be, do you agree, or that is, the classic skip-skid dynamic? A. Yes." From my examination of Exhibit V and bearing in mind this concession, I do not accept this objection as valid. (2) The distance between the skip skid marks at cone 8 is "too close" In re-examination Mr Stuart-Smith said: "A. The width between the outsides of the wheels of this trailer and of most trailers of this nature is typically about 2.1 metres or so from outside wheel to outside wheel. And that's roughly about somewhere around 2 to 2.1 metres, I'd expect the width of the skip-skid marks to be. If I look at these the distance between the more continuous left side mark and the right side mark is more like 1.7 metres. It corresponds more to a line just to a right side being just over the centre line, not to the skip skid marks which are just on the left of the centre line. So that's one point that the width is much narrower than I would expect." The line on the right hand side has been highlighted green on Exhibit E. In further cross-examination the question was raised as to whether such skip skid marks were laid down by the outer wheels or inner wheels of the trailer (pp. 510 - 515). Mr Stuart-Smith agreed that the total width of the dual wheels on one side was approximately 0.5m and that the distance between the inner surface of each of the dual wheels was approximately 1.4m (p. 514). The questioning continued thus: "Q. So that if the point on which the skid mark was laid down by the tyre is approximately the medium point of the tyre, then the distance between the two skid marks is approximately 1.5, 1.6, is it not? A. Yes, it could be. From between the centre of inner to the centre of inner. Q. Which is very close to 1.7, that you said you assessed these skid marks. A. Yes, it is very close. Q. But you t hen went on to say that that dimension was such as to be too narrow to make it consistent with it coming from the one vehicle. A. Yes. Q. Do you agree with me that on the process of reasoning that we have just gone through, it is not too narrow at all, is it? A. Yes, I went through another process of reasoning. Q. But on the process of reasoning that you and I have just been through, it is not too narrow at all, is it? A. Not on that process of reasoning, no." Mr Bailey was cross-examined on this issue by Mr Semmler QC and did not agree that the distance was too narrow. He said that the marks were consistent with having been made "by the inner tyre set". In light of Mr Stuart-Smith's concession and the firm evidence of Mr Bailey, I do not accept that this objection is valid. (3) The left hand skid marks line up with the trailer whilst the green highlighted line leads to the truck I have already referred to the skid mark(s) highlighted green which include the skip skid marks in the first objection. There is an obvious line of skip skid marks to the left of the green line, which has been highlighted orange. There is a gap between the right side skip skid marks commencing near cone 8 highlighted blue and the commencement of the orange line of 7 metres. Mr Stuart-Smith projected the green line to beneath the truck at rest and the orange line to the left rear side of the trailer. In further cross-examination Mr Stuart-Smith gave this evidence: "Q. Can we come now to your third reason, which is the question of continuous mark and the direction in which it runs. A. Yes. Q. So that I am clear, your third reason is predicated on the proposition that the left-hand continuous mark on Exhibit V is not consistent with the left-hand side wheels of the trailer. A. Correct. Q. And what are you saying is that the continuous mark leads up to a point which you say is not the left-hand side of the trailer. Is that accurate? A. Yes. Q. It's that distinction which comprises your third reason. Is that correct? A. I can't remember what number reason it is, but it certainly comprises a reason. Q. There were three that you gave and - well, I'll move on. You made it clear, I think, in your evidence that once there was impact between the car and the truck, the trailer, which is affixed at the back of the truck, would perform motions or dynamics which may be difficult to predict with certainty, because of the force of the impact. Is that correct? A. That is correct. Q. Is it also correct that the fact that the trailer was affixed to the back of the truck with the towbar and had no steering wheels also a factor in deciding that the movement of the trailer after the impact becomes problematic? A. Look, I don't know that that fact that it's not steerable makes it any more or less difficult to predict the type of marks that it would have left on the road. That's really what we're talking about when we're saying 'problematic'. I accept that the movement during and after impact means that there would be a change in forces and, consequently, tyre marks could well be different and vary. Q. It's plain, however, that there were considerable dynamic forces in operation after the impact between the truck and the car, as evidenced in photographs B7 and B8. A. I would agree with that. Q. Those considerable dynamic forces involved the following. After the impact, the truck jack-knifed or slewed around with the rear of the truck going clockwise and the front of the truck similarly going clock-wise, finishing up in a position as shown on photographs 7 and 8. A. That's correct Q. Similarly, the forces that were generated in the collision indicated or dictated that the trailer remained, at rest, facing north. A. Yes. Q. But in order for the trailer to reach that position and the truck to reach that position, you agree that the rear of the truck had, after impact, to move to the left? A. Yes, rotate clockwise. It actually - - Q. I'm just asking you, do you agree that, after impact, the rear of the truck moved to the left? A. That's slightly ambiguous, really. Relative to its centre of mass, it has certainly moved to the left. Q. That's what I'm asking you about. Relative to its centre of mass, the rear of the truck moved to the left. A. Yes. Q. Because of the attachment by the towbar, do you agree that the front of the trailer would similarly be moved in that direction? A. Yes. Q. And because the truck continued to rotate and reach the point as shown in Exhibits 7 and 8, the front of the trailer would be pulled back to the right, into the position where it came to rest, as shown in 7 and 8? A. I don't know that there's any sort of significant degree of pulling back. The trailer was pretty well gone straight ahead, but maybe with the slight deviation to its left, whereas - - Q. I am suggesting to you that there was this two-directional movement of the trailer after the impact, namely, initially to the left, and then either to the right or back to a straight ahead position where it reached at rest. Do you agree with that? A. To a very, very slight extent, I do. Q. Let me suggest to you that that is precisely what the enthusiastic Sergeant Kraefft chalked on the road, a series of skid marks which show the trailer deviating to the left and then coming back to the right. And please look at Exhibit V, if you need to do so. A. Yes, he has, to a very slight extent. That exaggerates the degree because of the telephoto nature. If I look at the photogrammetry plan, I can see the same deviation. It's more of a slight deviation to the left and then a straightening really, rather than a - - Q. You see, what I'm asking you about is the commencement of the deviation to the left by the trailer. That would occur, would it not at impact or immediately after impact. A. Pretty close, yes. Pretty well at impact or just after. Q. So that the fact those skid marks in photograph B7 deviate away to the left and then come back slightly to the right is consistent with the passage of the trailer after impact. A. Yes, it is, yes. Q. And that would explain, would it not, the two kinds of skid marks which Kraefft has chalked in; namely, the dotted ones down near cone 9 which lead around to the left and then back to the right. A. Explain - I'm not sure what you mean - the two types, it explains those and what's the other type? Q. To the left - the dotted chalk marks to the left of the continuous line which plainly move to the left and then come back to the right, that would explain that dynamic movement, would it not? A. Yes, it would. Q. In other words what caused it was the force of the impact. A. Yes, and braking. Q. What brought it back was the jack-knifing effect of the truck as a consequence of the impact. A. Yes, the dynamics of the post-impact movement, yes. Q. With those dynamics as roughly drawn on the road in chalk, would you agree, that after there is impact it becomes difficult then to be precise about what is continuous and what is broken skid marks as evidence by the chalk, in evidence V? A. Yes, I would agree with that." Mr Bailey was cross-examined on the same issue. On a copy of Exhibit B7 printed in his report, he marked the green line X and the blue line Y. "Semmler: Q. Would you agree the line you've marked with an 'X', after curving slightly continues to a point which is the place of rest of the trailer? Indeed, it may even go beyond that, but it certainly appears to be heading towards the driver's side rear wheels of the trailer. A. I agree that the white line that's shown is a prolongation of what I've marked as X. It curves to the left back to the right and it appears to terminate near the rear axle of the trailer at rest on the right side. But absent - but without being able to see photographs of the marks on the road before they were marked, given that there are so many marks on this photograph, there's equally a number of lines which travel from tyre mark X to the left side. Now, I know that at some point pre-impact all the tyres of the vehicle would be travelling along essentially coincident paths. Q. Thankyou for that. But look all I was asking - I wasn't asking for a justification of your analysis. I was simply asking whether you conceded that the line marked with the X continued on and appeared to at least go towards the driver's side rear wheels of the trailer, if not beyond that. A. I don't accept that because - - Q. You don't accept that? A. - - that not what I marked with X. With X I was really talking about different things. Q. All I'm asking you to do is have a look at the photograph and agree that the line you've marked with an X appears - it goes straight - or relatively straight for a period, and then itself lines up with what we can see heading off into the distance in a slight S shape a line which ends - or appears to go to the driver's side trailer wheels. A. I agree that the white line visible in Exhibit V does that, but I marked with an X the tyre mark on the road, as I discussed it, and I can't tell from Exhibit V where that tyre mark goes. Q. Wouldn't you agree that it looks likely that the slight S is a continuation of the tyre mark which has been chalked in and is now X on your diagram? A. No, it doesn't look likely because the tyres from the left side of the truck must have moved to a similar position laterally down the road. See, all the left-side wheels were originally going along - in a broad sense - all the left-hand wheels of all axles, truck and trailer, were all going past X or thereabouts. At some point post impact the left wheels of the truck which continued to skid move so that they are now in front of the right wheels of the trailer. But there are other white lines in Exhibit V which diverge from near the tyre mark X and go to the left side of the trailer. Q. You believe that those lines diverging to the left are the lines created by the trailer tyres, don't you? A. Yes, I do. Q. But what I'm suggesting to you is that the line marked X which I also suggest to you continues in a slight S shape up to at least the driver's side rear wheels of the trailer was probably created by skidding wheels of the truck itself rather than the trailer. What do you say about that? A. I'm sorry could you repeat that. I may have misinterpreted what you said. Q. The line marked X. A. Yes. Q. The line marked X was probably created by the skidding tyres of the truck. HH: I think you mean the line marked Y, don't you? Semmler: No, your Honour, I mean X. Q. Do you accept that or not? A. I'm not sure I know what I am being asked here. I just need to - - Q. Can you see - - A.- - clarify things. Q. Can you see the line with the X on it? A. Yes. Q. Is it possible that was created by the truck and not the trailer? A. Yes, that's a possibility. It's a low, - I discussed that, and it's a low probability. And it's a high probability that the intermittent tyre mark - that's the tyre mark that I marked with an X - was created by the trailer. Now, that's near the point X, once it progresses. I just think - you need to be very careful what can be drawn from Exhibit V. Q. What I'm suggesting to you is given that the marks to the left of line X, which you believe were created by the tyres of the trailer post impact, given their position, as against what appears to be the continuation of line X, it is most unlikely that line X represents the trajectory of the left-hand side of the trailer? A. I don't agree with that. Q. Because if it leads up to the right-hand wheel of the trailer, and it's all the one marking, it's undoubtedly not the left-hand side of the trailer, is it? A. I don't believe it's all the one marking; that's what I'm trying to say. And I just don't think there's the information in Exhibit V to make that." Bearing in mind Mr Stuart-Smith's concessions and Mr Bailey's assertions it is very difficult to draw any firm conclusion about this objection. It does not of itself cause me to reject the second thesis, if there be other grounds for its adoption. (4) The 7 metre gap between the blue and orange skid marks In re-examination, Mr Stuart-Smith said this: "Q. Is it possible that you can have, in effect, a skip skidding mark created by the driver's side wheel at one point, and then at a point further north, as it's proceeding north, the passenger side trailer wheels create that line which is at the western most extremity of this photo, Exhibit V? A. Well, I would expect if it was skip skidding due to just the application of brakes, that there could be a change in - it could happen on one side at a different location from the other side. But I would still expect it to be within reasonable proximity. The actual gap between the start of the skipping on the right and the actual start of the left side tyre marks which I have drawn in orange is about seven and a half metres, and would think that would be unusually long for skipping to occur without skipping to occur on the other side." In discussing the third objection, I referred to this gap as that between the blue line and the orange line. This objection misses the mark as the second thesis is based on there being skip skid marks on the green line at the same level as the undoubted blue skip skid marks. At p. 522.16 Mr Stuart-Smith accepted that this was not a valid objection to the thesis.

112 The Second Thesis Adopted The second thesis is, in my view, to be preferred. There is no "knock-out blow" to its adoption and there are at least two very good reasons to adopt it: timing and the lay evidence, and two further reasons.

112.1 Timing I have already pointed out at [38] and [63] that Mrs Estephan could have turned from Devonshire Road into King Street in 2 seconds. Mr Bailey quoted the Austroads Guide to Traffic Engineering Practice Part 5 - Intersections at Grade, Table 4.3 as stating that 4 seconds is listed as the Critical Acceptance Gap for traffic making a right hand turn at a T intersection when the vehicle starts from a stationary position. The Ford did not stop - that is the evidence of Mr Zadro and Mr Finch. If there were 3.9 and 4.9 seconds between Mr Finch's perceiving the danger and the POI, this accident would not have occurred as there was more than adequate time in which Mrs Estephan could have safely completed her turn. Mr Bailey made this point at p. 29 of his report. Mr Jamieson was cross-examined about the time involved and at p. 374 accepted that Mrs Estephan could complete her turn in 1.5 seconds and that there were at least 3 seconds involved in the position adopted by him for Mr Finch. Mr Stuart-Smith was cross-examined on this as well and eventually this point was reached: "Q. If in fact the skip skidding immediately north of cone 4 was the relevant indicia of braking, we have to go south for a distance represented by two seconds in time to reach the point at which the driver perceives a danger. Is that correct? A. Yes. Q. That then takes the position at which the driver perceives a danger at how far south of cone 4, or cone 3 if you prefer? Let's stick to cone 4. How far south of cone 4 would the truck have been two seconds earlier, on your hypothesis. A. 50 metres. HH: Q. Yes, because 90 kilometres per hour is 25 metres per second. A. Yes, you Honour. Stitt: Q. It's at that point that the driver, you say, would have had to perceive a danger, react to the danger and respond appropriately. A. If that is what he was doing, yes. Q. If in truth the driver was responding to the car entering the intersection, then your dimensions simply don't add up, do they? They don't stack up on that scenario, do they? A. No, not in a conventional sense they don't - not with that scenario."

It must be acknowledged, however, that both Mr Jamieson and Mr Stuart-Smith did not know the stimulus to which Mr Finch reacted, whether it was: (a) the modified T intersection; (b) the approaching lights of the Ford on Devonshire Road; or (c) the Ford either entering or being about to enter the intersection.

From the evidence of Mr Finch it is clear that it was (c) that was the stimulus to his braking.

112.2 Consistency with the Lay Evidence The second thesis is wholly consistent with the evidence of Mr Zadro quoted at [71]. The first thesis is not consistent with any of his observations of the truck. An initial speed of 93 kph is well beyond what he said in his Police Statement (70 kph) and in his evidence to me (80 kph). Breaking hard for 63m prior to impact is not consistent with attempting to stop "in the last moments".

The second thesis is wholly consistent with the evidence of Mr Finch, consistent with his approaching the intersection at about 70 kph, seeing the lights of the Ford to his left, taking his foot from the accelerator thereby engaging the compression brake for a few seconds, reducing his speed and then perceiving that the Ford was not going to stop and was likely to collide with him. One must also bear in mind his evidence that I quoted in [84] which is consistent with the second thesis.

112.3 Whilst skip skidding can possibly recommence, the advocates of the first thesis have been unable to adequately explain why, on this occasion, it did recur.

112.4 It is quite unlikely that what appear to be linear extensions of skid marks laid down in this collision were laid down earlier by other vehicles. In that regards I accept the evidence of Mr Bailey: "Q. One of the matters that the testimony of the expert witnesses who went before you referred to was the fact that there was a linear prolongation of the marks which commenced just north of cone 4, north to a point ultimately where the truck and trailer came to rest. Do you remember that linear prolongation concept that the evidence was given about? A. Yes, I think I understand. Q. What, in your opinion, is the relevance of the linear progression north from cone 4? Does that of itself establish that the skid marks were made by Mr Finch's vehicle as and from commencing at cone 4? A. I don't believe they have any great bearing or significance in this particular case because the lane width - I know it's not marked before about cone 8 or so - but the lane width was, I think, 3.2, measured by the police on another sketch I've got. The vehicle itself is close to 2.5 metres wide, and all heavy vehicles are close to 2.5 metres wide, and all heavy vehicles that have dual wheels have almost the same track and the same width of tyres. So that any heavy vehicle which was travelling on this road would be highly likely to be steered by its driver with the right-side wheel, the outer wheels, aligned with the centre-line or the perceived centre of the road, and so any vehicle which was travelling there and then braked would be likely to leave its skid marks in a normalised, coincident manner, if I could put it that way, because the only amount - assuming drivers were travelling lawfully - the only distance they have to play with laterally is about .7 metres, about two foot."

At p. 675.48 Mr Bailey stated that most heavy vehicles, if they were being driven lawfully, were going to be in about the same position laterally on the road. Furthermore, in addition to the width of the vehicle there is also to be considered the driver's side mirrors which also occupy part of the 0.7m allowance for a heavy vehicle driver. The same point was made by Mr Stuart-Smith at p. 446.16. See also [91] above.

113 My ultimate conclusion of fact as to Mr Finch's speed as he travelled beyond Wynyard Avenue, on King Street, is that he was driving at about 70 kph. When he first perceived the Ford's lights on his left, he applied the compression brake, reducing his speed to the pre-foot braking speed of 58 kph.

114 As I pointed out earlier, then Sergeant Le Merton initiated a "Road Safety Audit" of the intersection. A site inspection was carried out at 2pm on Monday 28 May 2001, the third day after the collision. In addition to Sergeant Le Merton, the site inspection was attended by Mr Doug Horne (RTA, Sydney Region, Road Safety Section), Mr Soma Somaskanathan (LCC, Traffic and Transport Planning Engineer), Mr Rajen Kumar (LCC, Traffic and Transport Planning Engineer), Ms Rachel Shineberg (LCC, Road Safety Officer), and Senior Constable Peter Smith (Green Valley LAC, Acting Traffic Officer). Following that inspection, Sergeant Le Merton generated a report headed "Road Safety Audit - Liverpool Council Traffic Committee". A copy of it is Exhibit H. It was not produced in these proceedings by LCC but rather by now Chief Inspector Le Merton from Police Records. It states that: "Deficiencies were identified in relation to signposting and line markings of the actual intersection, applicable speed limits, lighting and the physical alignment of the intersection."

Most matters raised in the report, I have already canvassed. The final section of the report is this: " LIGHTING Street lighting is of the white fluorescent type typically on every second light pole. There is an additional light attached to a pole sub-transformer on the southwest side of the intersection, however, that light globe has failed. Due to the nature of the intersection the lighting provided appears substandard. Street lighting erected along the eastern side of King Road gives the impression of a straight, continuing road. ALIGNMENT There is a drainage culvert under Devonshire Road on the western side of the intersection, with raised concrete surrounds. Due to tight geometry of the intersection, the rear of long vehicles track into adjacent lanes. Trucks travelling east on Devonshire Road turning right into King Road attempting to stay on the pavement cut across the middle of the intersection. Trucks travelling north on King Road turning left into Devonshire Road are required to move close to the centreline (in some cases over it) to make their turn, in order to prevent the rear of the truck or trailer tracking off the road surface and running over the raised concrete portions of the drainage culvert. Recommendation 7. Erect oversize 'Give Way' signs (x2) in King Road, facing northbound traffic at the intersection of Devonshire Road and paint a 'Give Way' line. 8. Relocate the 'No Through Road' sign on the northwest corner facing northbound traffic in King Road to an adjacent power pole and raise its height. 9. Repaint 'Give Way' lines in King Road, facing southbound traffic and the small intermediate section of double line to the standard shown in the diagram applicable to Australian Road Rule 73(5). 10. Repair the faulty overhead street light on the southwest corner of the intersection. 11. Investigate an upgrade of lighting at the intersection. 12. Investigate possible need for realignment of the intersection to improve the geometry, due to the tight turning manoeuvres created by the drainage culvert."

115 Shortly after this Mr Kumar generated another sketch plan (date is cut off in the copy of it in Exhibit AA). That plan required a 'Give Way Sign Ahead' advisory sign 100m south of the intersection on King Street, an extension of DWBL in King Street to 60m from the intersection, with RRPM at 6m spacing, a holding line across King Street, western lane on the alignment of the southern edge of the pavement of Devonshire Road and two Give Way signs on either side of King Street, a short distance south of the intersection. As far as traffic on Devonshire Road was concerned, a 35 kph advisory speed sign was to be attached to the existing modified T intersection sign and a "turning line" was to be painted over the intersection from its north-western angle in an arc to the eastern side of King Street. The plan describes two "existing No Through Road signs" and two "existing Give Way signs" facing traffic travelling south along King Street. An undated memorandum from Mr Kumar (addressee not stated) referring to a telephone call of 4 July 2001 (obviously another complaint about the intersection) refers to the Council's already having erected oversize "No Through Road" signs at the intersection. Whether a second Give Way sign was ever erected facing traffic travelling south, the evidence does not disclose. Photographs D11 and D12 show only one on the day after collision. The decision to do this work was made by Mr Kumar on 19 June 2001 under delegated authority and he forwarded Form 337 to the RTA on 22 June 2001. The work was completed by an RTA contractor on 10 July 2001.

116 Correspondence passed between LCC and Integral Energy about street lighting at the intersection. On 31 July 2001 Mr Kumar wrote to Integral Energy a letter the substance of which was: "Council is pleased to accept the scheme which requires a Capital Contribution of $2651.00 and an annual charge increase of $125.32 based on the installation of one (1) 250 watt High Pressure Sodium Lantern and removal of one (1) 80 watt Mercury Fluorescent Lantern."

117 This was for pole ID 135, on the corner of King Street and Devonshire Road. According to the Lighting Appraisal, the new luminaire had an output of 26,000 lumens, approximately 7 times the output of the old luminaire. According to the Appraisal, this was the result of the change: "The effect this has on a driver approaching the intersection of King Street and Devonshire road from the northbound lane of King Street is that it highlights the intersection given the contrast with the dark surrounds especially due to the fact that the 250 Watt high pressure sodium lamp is a yellow light source."

118 Councillor Dobell-Brown received a further complaint about the intersection from a resident of Devonshire Road and wrote a memorandum of 9 October 2001. This generated a letter to the Councillor of 1 November 2001 giving Mr Kumar as the reference but under the hand of Mr P. Tolhurst (Manager Transport and Traffic Planning). It sets out the work done since the collision and states that the RTA had been requested to "consider reducing [the] speed limit from 80 to 60 kph along King Street and Devonshire Road." It continues: "Additionally, Council is undertaking a detailed survey of the intersection. The survey will highlight opportunities for widening the road alignment to allow safe manoeuvre of large trucks. Once the design works are completed a report will [be] presented in the next available Traffic Committee Meeting for consideration."

119 A Traffic Committee Report was later prepared and provided to an ordinary meeting of LCC on 26 August 2002 and the works proposed were approved by the Council at that meeting. The author of the report was Mr Kumar. The "Executive Summary" commences by stating that the Council "has received several complaints from the residents of the area concerning traffic and road conditions at the intersection". The Report proposed intersection realignment works "together with line markings". The size of the plan for the works contained in Exhibit AA is very small and it is impossible to read the written captions for the proposed work. As far as I can ascertain, it proposed a widening of the southwestern corner of the intersection and also the northern side of Devonshire Road near the intersection and the eastern side of King Street, indicating a widening of the roads for traffic turning right out of Devonshire Road. It appears to me to deal with this topic contained in the "Detailed Report" part of the document: "Due to tight turning [manoeuvres] heavy vehicles encroach on the wrong side of the road to negotiate the intersection."

120 The body of the report refers to the "double fatality" of 25 May 2001. It also has an "Accidents History" section which states this: "Roads and Traffic Authority Accident database shows that [there] were (7) seven reported accidents at this intersection in the three year period ending September 2001."

That statement confirms oral evidence in this matter that LCC had access to RTA databases giving accident statistics and analysis such as Exhibit J.

121 It was clear from Mr Zajac's evidence that after the reconstruction of the intersection, the Give Way signs facing traffic heading north along King Street were removed and that he was, again, dissatisfied with the intersection.

122 This question must undoubtedly be answered affirmatively. He failed to keep a proper lookout. He ought to have observed and heeded the information contained in the modified T intersection sign. Even if it did not convey to him that he had to turn left into Devonshire Road, it warn him that he would have to give way to traffic turning right out of Devonshire Road. Mr Bailey gave this evidence about, firstly, the visibility of the sign itself, and, secondly, when it becomes legible: "HH: Q. With lights on low beam, from what distance would a driver be able to perceive that there was an advisory speed sign there? Forgetting what it said. A. Thank you, your Honour. I recall that now. Objectively, truck headlights are the same type of lamps as sedans and come under the same ADR, Australian Design Rules. The design rules require that low beam head lamps have a sharp cut-off between light on the bottom, dark on the top. That sharp cut-off must have an initial inclination between 1 per cent and 1.5 per cent. That means that for an average which is quite typical for vehicles of about 1.3 per cent, the sharp line on low beam will reach 50 metres ahead on the road. Now, there is a lesser level of light which comes in the dark portion above the sharp cut-off, and so, using that portion, it would be possible to see a reflective sign in good condition - in other words, to recognise the characteristic diamond and yellow characteristic - from perhaps 100 metres or perhaps 150 metres. In other words, to recognise a sign coming up. Stitt: Q. In your opinion, in those traffic conditions, in those prevailing conditions, at what distance would the legibility of a sign such as this modified sign be available to the driver? A. That will depend on factors such as the eyesight of the driver, the actual effectiveness of - the intensity of his headlights, and the contrast which the sign will provide him. Mr Finch said that his eyesight was good. Assuming that his headlights operated to roadworthy standards, I couldn't put a maximum range, but I could say that by 50 to 60 metres he would begin to be able to interpret what the sign - he'd be able to begin interpreting the sign."

123 Travelling at 70 kph Mr Finch was covering 18m per second. If he could make out this warning sign shape at 150m he had 8.3 seconds in which to observe it. He would certainly be able to observe it at 100m, so it would have been in his sight for 5.5 seconds. There would have been 2.5 to 3.0 seconds in which he could read the sign. He just did not observe it. At pp. 478 - 479 of the transcript Mr Bailey gave evidence of how a driver might misread the modified T intersection sign as an ordinary T intersection sign. Mr Finch could easily have said, "I saw it but misread it". To his credit he did not.

124 Earlier I made a finding that Mr Finch was travelling about 70 kph but reduced that to 58 kph when he first applied the footbrake. Mr Finch said that he had the compression brake on for 2 or 3 second prior to engaging the footbrake. At 70 kph, he would travel 36m over 2 seconds, 54m over 3 seconds. However his speed was reducing over those seconds. Doing the best I can, he would have travelled between 20m and 25m prior to 22m before POI. Let me assume therefore 50m before POI. The DWBL starts 31m before POI. Mr Finch ought to have seen the beginning of the DWBL 50m before it started, when the sharp cut off point of the low beam was reached. 50m before the commencement of the DWBL is 81m prior to POI therefore the sequence of events would have been, (a) seeing the commencement of DWBL at 81m, (b) seeing the Ford at 77m (allowing for 1.5 seconds perception/reaction time), (c) compression braking at 50m, (d) foot braking at 22m. Now the difference between 81m and 77m is very short. Travelling at 18m per second he would have had 0.22 seconds to observe the DWBL before his attention was distracted by the light of the Ford. Before me, Mr Finch did not remember seeing the DWBL but he told the Local Court some 3.5 years earlier that he did. I accept therefore that he did observe the DWBL but I also accept that his attention was rapidly drawn to the approaching lights of the Ford, leaving him no pause to ponder why they were on the road. At 77m from POI, Mr Finch would not have been able to see though curvature of the last section of the DWBL to the left, as his headlight, the sharp right engaged at 50m and below, would not have reached it. In my view no negligence is established by Mr Finch's not seeing the last curved section of the DWBL.

125 Mr Finch was cross-examined about a large number of "visual cues" which, it is alleged, he ought to have seen prior to a point of danger being reached and that in failing to see them and react to them he was negligent. I am not persuaded about any of these. They are: (1) The back of the Give Way sign facing traffic travelling south on King Street on the eastern side of King Street. This is described at [31]. It can be seen in photograph D4 taken in daylight. It cannot be seen in Exhibit B as it is obscured by the vehicles at their resting places. Even if it were, one must remember that those photographs were taken with the aid of artificial light. This sign is 18m north of POI so at the time Mr Finch perceived the Ford, (77m south of POI) it was 95m from him, to his right, at the side of the carriageway and there is no suggestion that it had a reflective surface on it back. Bearing in mind what Mr Bailey said about visibility on low beam, I find it impossible to accept that Mr Finch would have been able to see it prior to turning his attention to the Ford. I entirely agree with Mr Stitt's submission that this was a ludicrous suggestion. (2) The 'No Through Road' sign. As I said at [31], that sign appears to become legible from about 40m from it. The first of the skid marks laid down by Mr Finch's truck is 43m from this sign. When Mr Finch first perceived the Ford he was (43m + 55m) 98m from this sign. It was illegible to him. The oblong shape and reflective surface would mean nothing to a motorist - it might have been a sign forbidding the dumping of rubbish. Furthermore by the time Mr Finch reached a point where the sign was legible the emergency was already occurring. Again, the following is said in the "Road Safety Audit" and has been repeatedly given in evidence: "The No Through Road sign on the northwest corner of the intersection has been erected at a low height and it was observed by those present, that the sign was obscured by large family cars i.e. Ford Falcon sedans coming out of Devonshire Road." The passage of the Ford obscured the sign at precisely the time it would have become legible, but at that time Mr Finch's concentration was on and ought to have been on the Ford. (3) 'Devonshire Road' street sign The position of this sign is stated at [31]. It is erected at a high level. It can be clearly seen in Exhibits B7 and V. In those photographs, the truck is seen in its immediate foreground. Photograph B10 makes it clear that the truck is in front of it. It is clear that the sign is at a height of 1.5 times the height of the truck. High beam would have needed to be engaged to read it. In any event, it tells a motorist nothing about the priority at the intersection, it merely indicates a T intersection, a fact which was clear to Mr Finch when he first perceived the lights of the Ford approaching from the left. (4) The street light on the corner of the intersection. Again, the streetlight tells a motorist nothing about the priority of the intersection. It is off set from the line of luminaires south of the intersection and from the line of luminaires north of the intersection. However, that offsetting would have been less obvious because of the failure of the last luminaire south of the intersection. Furthermore the luminaires were all the same. After the collision this lantern was replaced with a much stronger luminaire and one of a different colour. If that had happened prior to the accident, one could see some force in the submission. Again all this luminaire did at most was to indicate an intersection, not a modified T intersection.

126 The next issue to consider is speed. Was Mr Finch negligent in proceeding down King Street at 70 kph? I have already found that the applicable speed limit was 60 kph. However breach of a road rule is not itself negligence and the road rules do not give rise to statutory cause of action: Brulhart v Jarman [1964] NSWR 1210. In that case Herron CJ cited with approval a dictum of Herring CJ in Tucker v McCann [1948] VLR 222 at 227: "In an action for negligence at common law a breach of the regulation is no more than a piece of evidence of want of reasonable care to be taken into account along with all the other evidence in the case. This conclusion, moreover, is one that provides a readily comprehensible and satisfactory working rule, one that is capable of being simply expounded to a jury and easily understood by them. It leaves, of course, to the jury, where the case is tried by a Judge and jury, the determination of the weight, if any, to be attached to any breach of the regulations, that they may find established on the evidence. And there is nothing incongruous in allowing them to determine this matter. For it is a matter which has to be determined by reference to what a reasonably prudent man would or would not do in the given circumstances. And this is peculiarly a jury matter, one that juries are constantly being invited to consider in light of their commonsense and knowledge of everyday affairs."

127 Considering the confusion about the speed limit, the difficulty of determining whether this was a "built-up area" and the other matters I considered between [14] and [29] I am not persuaded on the balance of probabilities that Mr Finch was negligent in proceeding at about 70 kph along King Street. At the time he applied the footbrake Mr Finch was travelling at 58 kph. The effective cause of this collision is not speed but Mr Finch's lack of awareness of the altered priority at the intersection.

128 The remaining issue on this topic is whether Mr Finch was negligent in steering his truck onto the incorrect side of the carriageway. Why he did this so is understandable in human terms: the natural human reaction to avoid the path of an oncoming projectile. Mr Heazlewood submitted that this was an "agony of the moment" situation. The following statement is made in Fleming, The Law of Torts, 9th edition, (1998) at p. 319: "Ordinarily, it is true, we may proceed on the assumption that others will act with care and in accordance with accepted canons of propriety, but prudence demands as much from a potential plaintiff as from a defendant that he take guard as soon as he has reason to suspect that assumption to be ill-founded.127 Moreover, it is unreasonable - where there is no necessity for it - to cut things so fine as to allow no margin of safety for the mistakes or thoughtlessness of others.128 This counsel of wisdom is of a singular relevance to motorists. On the other hand, a person's conduct in the face of sudden emergency cannot be judged from the standpoint of what would have been reasonable in the light of hind-knowledge and in a calmer atmosphere conducive to a nicer evaluation of all alternatives.129 A certain latitude is allowed when 'in the agony of the moment' he seeks to extricate himself from an emergency not created by his own antecedent negligence.130 The degree of judgment and presence of mind expected of the plaintiff is what would have been reasonable in such a situation, and he will not be adjudged guilty of negligence merely because, as it turns out, he unwittingly took the wrong course."

129 Footnote 130 states that this principle is inapplicable when the plaintiff's negligence has contributed to the emergency, relying on Municipal Tramways v Ashby [1951] SASR 61. The problem in the present matter is that it was Mr Finch who created the emergency by failing to see and comprehend the message conveyed by the modified T intersection sign. In any event, I do not believe that this is an appropriate case in which to apply the "agony of the moment" principle.

130 The basic rule of motoring in Australia is to keep left. Mr Finch was, what is today called, a professional truck driver. Truck driving was his livelihood. He had been driving trucks continuously for at least 12 years. He must have known that a collision with a car or stationwagon at speed would be catastrophic. Pulling his rig to the left onto the shoulder of the road may have unsettled the rig but it would have provided more time for the stationwagon to have completed its turn in safety. As I have earlier stated, even if he had maintained a straight direction, this accident would not have occurred. In my view, in steering to the right he was negligent. He was negligent in the steering of his truck.

131 Mr Windsor and Mr Stitt QC submitted that Mrs Estephan was negligent. However Mr Stitt's clients did not cross-claim against her Estate. This allegation was strenuously opposed by Mr Russell SC and Mr Semmler QC. The arguments on this issue can be summed up thus: (i) either Mrs Estephan saw the truck or she did not: if she did not, she was negligent in failing to keep a proper lookout; (ii) if she did see the truck (perhaps better expressed as the rig) she was required to make an assessment of: (a) the speed of the truck, (b) her own speed, (c) the distance of the truck from the intersection, (d) the distance of her vehicle either immediately before the intersection, at the intersection, or in the intersection, but if she made an error in any of these assessments the accident was inevitable, and the error was an act of negligence.

132 As the estate of Mrs Estephan was joined by LCC, LCC has the onus of proof on these issues. There is, of course, no evidence that Mrs Estephan did not see the truck: I would have to infer it. I am unable to do that. I have already pointed out the line of sight between Devonshire Road and King Street across the paddock on the southwestern corner of the intersection. The rig's headlights and clearance lights were visible across it, as Mr Zadro pointed out. Mr Zadro, travelling 70m behind the Ford could clearly see it. There is no evidence that Mrs Estephan was an inattentive or inadvertent driver. The probabilities favour the proposition that she did see the rig.

133 It was submitted that on any objective assessment, this was a dangerous intersection and was recognised as such by "the locals" e.g. the Zajacs, Mr Zadro, and other local residents who had made complaints about it from time to time. Mrs Estephan was a "local" and therefore she ought to have been more vigilant than she might otherwise be. However, as a regular user of the intersection, Mrs Estephan must have known the correct priority at it. She was entitled to believe and proceed on the basis that the truck would yield way to her. There is no evidence that either Mrs Estephan or Mr Finch made any signal at the intersection. Under the Road Rules (see Exhibit R) Mrs Estephan was not required to indicate that she was turning right. However, if Mr Finch was proceeding straight ahead, he was required to indicate that he was making a right hand turn - but his right hand blinker was not activated. That may well have misled Mrs Estephan. Furthermore, one must consider this evidence of Mr Jamieson, to which I have already adverted: "Q. Do you have an opinion as to how easy or difficult it would have been for Mrs Estephan travelling east along Devonshire Road to assess the speed of the truck driven by Mr Finch, assuming that she had seen it? A. Well, my understanding was that it was night time. My understanding, was that the truck had its headlights on. There was no bright street lighting to the south, and despite the presence of the orange sidelights it is normally considered difficult to precisely judge the speed of an oncoming vehicle with its headlights on."

134 On the question of assessing the speed of the truck, it must be remembered that this collision occurred at night, in a semi-rural area, on roads which were, on any objective standard, poorly lit and there were few, if any, stationary reference points against which Mrs Estephan could gauge the speed of the truck. If she were able to gauge its speed, what would she have assessed? It is obvious from my finding of fact as to the speed of the truck that it was not proceeding along King Street at some thunderous rate between 90 - 100 kph. It was proceeding at a speed which a local, Mr Zadro would consider to be "normal", 70 kph when he perceived the speed limit to be 80 kph, "around about the speed limit" (p. 249.34). Although Mr Zadro did not see the effects of the application of the compression brake (reducing the truck's initial speed of 70 kph to 58 kph) Mrs Estephan may have seen the commencement of it and that may have led her to believe that the truck was slowing either to turn left or to yield way to her. Accordingly, there could have been 3 stimuli affecting her assessments: (i) her knowledge of the priority, (ii) the lack of a signal by the truck for the theoretical right hand turn, and (iii) the commencement of braking by the truck.

Weighing all these considerations, I am not persuaded on the balance of probabilities that Mrs Estephan was negligent.

135 Furthermore, this, in my view, is a classic case of the "agony of the moment" to which I have referred in discussing Mr Finch's negligence. Even if she perceived at the last moment that there might be a collision, she might have assessed it impossible to come fully to a stop in Devonshire Road and assessed that there was sufficient time for her to make the right hand turn prior to the collision. She in fact achieved that result: the collision occurred because Mr Finch made the error of steering to the right, a decision which, from his evidence, which I have already quoted, haunts him to this day.

136 In these proceedings there was only one party which did not accept that LCC was negligent - the Council itself. To the evidence I have already discussed concerning the history of the intersection both before and after the collision, must be added some evidence given by Mr Zadro about this "tricky intersection". In cross-examination by Mr Stitt QC, Mr Zadro testified thus: "Q. You recognised it as a dangerous intersection, as a driver that went through it frequently. Is that correct? A. Yes, that's correct. Q. Was the danger created, in your judgment, by the fact that traffic could travel straight through, thinking that it was a T intersection? A. That's correct. Q. So it was the ambiguity of the priority road which created the danger, in your view? A. Yes, that's right.

Later he said this: "Stitt: Q. Just one thing, Mr Zadro. You said that you were familiar with the intersection and you drove through it on a daily basis while you were living at that address in Harrington Park. Is it the truth that you had seen many near accidents at that intersection prior to this day? OBJECTION (SEMMLER). FORM. QUESTION ALLOWED.

A. I had seen a few close calls in the past, yes. HH: Q. Had you actually seen any actual accidents? A. No accidents, no, just close calls. Stitt: Q. Were the close calls created by the vehicles coming along King Street and proceeding through the intersection in a straight line where vehicles were coming up Devonshire - - A. Yes. Q. In the same configuration that these two vehicles on that night - - A. As the accident was, that's right. Yes."

137 On evidence before me, LCC had drawn to its attention the problem that gave rise to this fatal collision 9 years before that collision [13.3]. Attempts were made to address the problems in 1996 and 1998 but each of those attempts were, in my view, wholly inadequate. If what was done immediately after the accident had been done immediately prior to it, it is more probable that not, that this accident would not have occurred. Faced with clear regulatory signs requiring Mr Finch to give way and with lights approaching the intersection it is likely that Mr Finch would have yielded way to the Ford.

138 Each of Chief Inspector Le Merton, Mr Jamieson, Mr Stuart-Smith and Mr Bailey criticised the intersection layout and suggested what ought to have been done. The cost of this was described as either "trivial" or "minimal". On this issue what evidence did the Council call? None. It adduced no expert evidence and no evidence from any of its officers mentioned in the evidence. From the traffic department none of the following were called: Mr Philip Tolhurst (Manager as at 1 November 2001) Mr Victor Lim (Traffic Engineer) Mr Rod Kennedy (Transport Network Facilities Manager) Mr Rajen Kumar (Traffic Engineer) Mr Somar Somaskanathan (Traffic Engineer) Ms Rachel Shineberg (Safety Officer)

139 Furthermore, there was no attempt made to explain the absence of any of them from the witness box. The failure to call Mr Kumar is the most surprising, considering that the evidence before me shows him as being intimately concerned with this intersection since 1996. There was another Council official who was important in the history of this intersection prior to the collision, Mr Vonseca, but he also was not called and no attempt was made to explain is absence from the witness box. This failure by LCC to adduce evidence makes it much easier for me to accept the various criticisms of the Council's actions and inactions.

140 A starting point for consideration of the issues now in question are the Council's own documents. A duty statement given to Mr Victor Lim as "Traffic Planning Engineer" on 1 September 1992 (Exhibit 17) contains this duty (no. 7): "Undertake an investigation for the whole of the Liverpool Local Government area for roads under Council's control, into traffic flows and undesirable traffic conflicts and/or trends, and recommend remedial action."

The current duty statement (Exhibit 18) contains the same duty. Any intersection raises a traffic conflict and there had been "undesirable traffic conflicts" at this intersection since 26 May 1992.

141 At [114], I discussed the Road Safety Audit initiated by then Sergeant Le Merton and quoted part of it. In addition, one must note the following statements in the Audit referable to the regulation of the intersection for which travelling north along King Street: "There is no regulatory sign facing northbound traffic on King [Street], to indicate those vehicles must give way to traffic coming from the left out of Devonshire Road … Line marking is inconsistent with that depicted in the diagram for Australian Road Rule 73(5)."

142 In chief, the Chief Inspector again attested to his "concerns" about the intersection [pp. 171 - 179]. These were "serious concerns" (p. 172). When discussing the lighting on King Street north of the intersection, he said it created a "misleading impression" that King Street continued straight along (p. 177). He described the intersection as "anomalous" (p. 177). He went on to say: "I had concerns that there was nothing obvious to a driver travelling in a northerly direction on King Street that the driver would be required to give way to any vehicle that was coming from his left out of Devonshire Road. There was no Give Way line or Give Way sign erected facing the driver travelling north requiring him to give way to a vehicle that was coming from his left."

143 He then went on to discuss the difficulty encountered by long vehicles turning left onto Devonshire Road and their having to cross onto the incorrect side of the carriageway. He then discussed the problem about the lack of speed restriction signs which are a responsibility of the RTA, not LCC. He then raised a concern about the pavement surface, "a bit of a patchwork quilt" and then said: "it just demonstrates that council were effecting the repairs where they became aware of the issues." (p. 179)

144 That, of course, raises another way in which LCC would be on notice of the state of the intersection. Pavement repairs at the intersection can clearly be seen in photographs Exhibit D10 and D12.

145 In his report of 7 October 2004 Mr Jamieson said this: "The combination of the low level of signposting at the site at the time of the crash, combined with the minimal street lighting present, would have made the site (from a traffic engineering viewpoint) at best, ambiguous and at worst potentially dangerous. This was due to: (1) The intersection itself would have been in almost total darkness. However, the line of luminaires towards the north meant that any northbound driver unfamiliar with the area would foreseeably assume the road went straight ahead to the north. (2) The single 'Modified Intersection' sign (AS1742.1 W9-AL) reportedly present at the time of the crash and shown in Appendix 1, would not, by itself, give sufficient warning or information to a northbound driver that the through road veered to the left. This is because at first glance, the sign appears merely as a 'side road' warning. (3) Presence of a 'Give Way' sign for southbound traffic on King Street emerging from the 'No Through Road' section of King Street, combined with the holding line marking on the road (for southbound traffic), would not discourage eastbound traffic turning right from Devonshire Road to stop or significantly slow down, nor to discourage the possibility that they (an eastbound driver) needed to give way to traffic approaching them from the south (on their right)."

146 In discussing "the most likely cause of events leading up to the accident", Mr Jamieson commenced thus: "Traffic engineering design is based on empirical as well as experimental research undertaken over some fifty years - involving observed and researched driver behaviour inter-relating with different road environments. Traffic engineers have thus developed various 'expected driver behaviours' for differing road circumstances. Using this knowledge, engineers have for decades modified the road environment to safely guide motorists through different situations. This is done by a combination of: - geometric road design, - standard signposting, - standard line marking, - standard street lighting and other elements. In this instance, the material reviewed suggested that the truck driver had been previously briefed to travel straight ahead on this section of road until the first opportunity to turn right. This instruction, combined with the driver's unfamiliarity with the road, and with the perspective line of the street lights discussed earlier, would mean that he would have assumed the road on which he was travelling (King Street) was the primary through route. Therefore, any traffic approaching him on his left would 'need' to give way to him. It therefore would be expected that Mr Finch approached this site at his cruising speed without slowing. At the same time, Mrs Estephan who was reportedly a local resident, had been approaching this site with the presumed understanding that the main through route was the route connecting King Street and Devonshire Road. It is presumed that she had previously used this route on many occasions and as such, would be aware that most (if not all) of the traffic approaching from the south on King Street (on her right) would be turning left onto Devonshire Road. Indeed, based on the density of the settlement to the north of the site, it may have been the case that Mrs Estephan had never encountered a vehicle travelling through this intersection to the north of the site. Therefore, from a traffic engineering viewpoint, it would be expected that that a local driver would be approaching this site initially about 50 km/h (with reference to Figure 6), slow to about 20-30km/h, then gradually turn right into King Street in order to travel south."

147 Appended to this report of Mr Jamieson are extracts from the Road Safety Audit Manual (1993) published by Austroads. Under the heading "Intersections" on p. 82 of that work the following appears: " Priority and Layout The layout and control arrangement at an intersection should be simple and obvious to approaching motorists. Remember that straight priority is usually expected and that modifications to this can require additional visual reinforcement. Even where priority is straight, some existing strong visual cues like fence lines or lines of trees on the minor legs can suggest the continuation of the road so strongly that the control sign and markings are not noticed by some motorists."

148 Beneath that text is a photographic illustration with this caption: "VISUAL CLUES SUCH AS LINES OF TREES CAN SUGGEST THAT A ROAD CONTINUES STRAIGHT WHEN IT ACTUALLY TAKES A BEND."

149 In the present matter where the priority was not straight, that modification of priority did require additional visual reinforcement than the modified T intersection sign and a slight deflection to the left of the last 6m of the 30m of DWBL. At the minimum, it would require a Give Way sign. Furthermore the "visual cue" of a line of illuminated streetlights north of the intersection suggested that it continued (as the main road) straight ahead.

150 In a supplementary report of 22 October 2004, Mr Jamieson made an additional comment that "the curved barrier lines at the intersection would not have been illuminated by the truck driver's low beam headlights in sufficient time for them to have any meaning." The observation probably explains why, after the collision, the DWBL on King Street was extended from 30m to 60m.

151 In chief Mr Jamieson made a number of points. When discussing the works completed at the intersection in 1996, he said: "Q. That itself - doing what was done in 96 by itself was capable of creating much confusion, wasn't it? A. Yes, you Honour. Q. Because traffic coming out of Devonshire Road could expect cars on their left to give way to them, but would still have to give way to cars on their right. A. Yes, your Honour. I would have thought that was self-evident, your Honour, which concerns me about this whole case. Q. Yes, so that it was awfully misleading, because it was a modified T intersection that was potentially disastrous for those coming out of Devonshire Road. Is that right? A. Well, your Honour, this is almost a matter of common knowledge. You don't need me to tell you the ambiguities associated with the change of priority. Semmler: Q. Would you expect a reasonably prudent traffic engineer to pick up this ambiguity? A. One would hope so.

152 As to the works completed in 1998 he said this: "Q. In relation to that proposal as well, do any risks immediately spring to mind as you look at the proposal so far as traffic using that intersection is concerned? A. Well, yes. There's two issues about the sketch. The first one is what I would have thought to be the obvious risk of exposing the right-turning traffic from Devonshire Road to continuing northbound traffic in King Street without any control. But, secondly, the schematic diagram you've shown me, I believe is misleading. Q. Why is that? A. The alignment shown on this schematic suggests a curve from King Street into Devonshire Road rather than a square T intersection. The presentation of this curvature image would be misleading to a person undertaking what I call - or what is called a desk, d-e-s-k, audit of the proposal. Q. What's a desk audit? Is that done in local government? A. Yes. It's done by people within traffic engineering departments who glance at schematics and glance to see if anything should be done that hasn't been done, or is proposed, and by producing a curved line between King and Devonshire gives the impression that it's curved rather than a square T intersection, and therefore not emphasise the potential danger of exposing eastbound right-turning traffic from Devonshire to northbound traffic at King. Q. Is your knowledge that in fact it's not a curved intersection, but a T intersection? A. No, it's a square T intersection. That's what it is. Q. Going from your actual observation of the site itself? A. Yes, that's correct."

153 He continued later on this: "Semmler: Q. As at 1998, was there knowledge in the traffic engineering community in this country as to means available to reduce or eliminate the kind of risk identified by Mr Kennedy in that memorandum, and indeed, identified by you as you looked at the sketches in question? A. Yes. Q. What were the means available? How would you go about getting rid of this risk that you've identified and that Mr Kennedy identified? A. By a means following the road safety audit undertaken by the police in 2001. Q. But did the knowledge change between 1998 and 2001? A. No, all the hardware policies and procedures were the same. Q. Was it an expensive exercise to implement the knowledge to reduce or eliminate that risk? A. Trivial. Q. What did it involve? A. The addition of a holding line across the southern side of the intersection and the erection of two give way signs, one on each side of the road. Q. So far as sound traffic engineering practice is concerned, to what extent would you have expected that that knowledge would have been drawn upon and those measures implemented in 1998? A. Well, I don't understand why they weren't."

154 Later, he reiterated that point: "Q. Could you have a look at Councillor Harrington's question, which is the last document on Exhibit L. A. Yes. Q. Do you agree that the very problem, or the very risk, which became a reality on 25 May 2001 was identified by the Liverpool City Councillor on that day, on 14 April 1998? A. Yes, that's correct. Q. As judged by prudent traffic engineering standards as at 1998, how do you assess the response by the council to that identified - - HH: The council's servants. Semmler: Q. The council's servants to that identified risk? A. It partially addressed it for daytime conditions. Q. Could you elaborate on that, please. A. Well, part of Exhibit L is the schematic diagram dated either 8 or 13 October 1998. I gave evidence earlier about how the curvature of that diagram was misleading; but ignoring that for the moment, it proposed and advanced a warning sign, a modified T intersection warning sign, some line markings, some raised pavement markers and so on. As I think I suggested the other day in evidence, that treatment would partially address the concerns for daylight conditions, but not really fundamentally address the problem that Councillor Harrington raised. Q. Was there any technical reason why a Give Way sign facing northbound traffic on King Street could not have been installed on the south-western side of the intersection at the time when the other measures were taken in 1998? A. No. Q. Does the same apply to a white holding line next to the give way sign? A. Yes. There's no technical reason why it couldn't have happened. HH: Q. The cost, as you said was trivial. A. Trivial, yes, your Honour."

155 Before the commencement of Mr Stitt's cross-examination, Mr Jamieson reiterated his earlier observation about the lighting north of the intersection (pp. 347 - 348) but I need not again rehearse that. Whilst Mr Stitt QC protested that he was not "over-egging the pudding", he had Mr Jamieson agree that the street lighting on King Street north of the intersection was "positively misleading".

156 As to the modified T intersection sign, Mr Jamieson agreed not only that it was "ambiguous" but also capable of being "positively misleading". Under cross-examination by Mr Windsor, Mr Jamieson said that this sign failed to do, in practice, what it was designed to do. The design of it, of course, is not the responsibility of LCC, but if it be ambiguous, it requires reinforcement in accordance with standard traffic engineering standards. Mr Windsor cross-examined Mr Jamieson about other visual cues that I discussed above when considering Mr Finch's negligence. Mr Jamieson said that the various visual cues were not "sufficiently strengthening" as far as he was concerned (p. 386).

157 As I have mentioned, Mr Stuart-Smith was retained by the NSW Police Service, probably for the prosecution of Mr Finch. He was not qualified to discuss the negligence of the LCC. Nevertheless, he said this in his report under the heading "Intersection Discussion": "At the time of the crash the combination of road geometry, traffic control devices and street lighting combined to create an inadequate and ambiguous intersection environment, particularly at night for drivers using low beam. For northbound drivers on King Street who failed to observe the Modified Intersection warning sign, the intersection would be difficult to detect. In addition, the slight curvature of the northbound centre lines created a Right of Way ambiguity. By designating King Street south and Devonshire Road as the 'major road', in combination with the curve in the centre lines, technically this route can be regarded as a single road with King Street north as an intersecting road (requiring northbound drivers from King Street to perform a partial right turn and thus yield priority to Devonshire Road). On the other hand, the intersection has elements of a conventional T intersection with a different priority, should northbound drivers attempt to travel straight ahead without deviating. The movement from northbound in King Street (the major road) to northbound in King Street (the minor road), through the intersection, could be considered a straight through movement or a right turn. Nonetheless, it would appear that the legal ambiguity relating to priority was not the primary issue in relation to the crash. Although Mr Finch's intended direction has not been reported, it is probable that he intended to travel with the major road, which would have required a left turn from his northbound approach. On the other hand, had Mr Finch intended to travel across the intersection, the Falcon had passed the break in the centre lines at the point where Mr Finch would have been required to partially turn into the King Street minor road portion. Consequently the priority ambiguity was not a specific issue. However, the hazardous nature of the intersection (which is related to the legal ambiguity issue) most likely contributed to the collision. At the time of the crash, northbound traffic were faced with one primary indicator that the road turned to the left, a Modified Intersection sign (left turn sign with straight ahead minor road). The sign lacked a complementary Advisory Speed sign. A No Through Road sign, curved double centre lines and a Holding line were of significance either after the warning sign had been interpreted, or as a driver approached closer to the intersection. Street lighting was not sufficient to illuminate the intersection for a reasonable distance, although this would not have been as significant for drivers using driving lights and high beam, as was likely the case for Mr Finch. The continuation of the street lights on the minor King Street Road could have encouraged the view that the major road continued beyond the intersection. The centre line curvature would not have been visible until the late stage. Under such conditions it could have be expected that the intersection would suffer a higher accident rate than other intersections with similar traffic flows. Notwithstanding the poor intersection environment, the Modified Intersection warning sign, indicating a left turn, located 85 m before the intersection should have been clearly visible to northbound motorists. The degree of reflectivity should not have materially affected its ability to be seen, particularly for drivers using high beam."

158 Mr Stuart-Smith was cross-examined at some length on those issues by Mr Windsor. At two places he was questioned about the curvature in DWBL. At p. 487 - 488 he said: "Q. The fact that the lines curve was not ambiguous? Well, I think that's one of the issues. The curvature of the lines before the gap starts is not very much. They only offset about less than a metre, I think, and that's what I'm talking about with the ambiguity and that it could be thought that you could travel straight ahead. That versus - whereas other people, if you interpret them correctly, then you've actually got to make a slight left curve and then turn right. So I mean that is the ambiguity; I mean that's exactly the issue. I mean I agree that the fact that they are curves means that technically and legally and for most people - that you should make a slight left turn before turning right to head north into King Street."

159 At p. 494, this evidence was given: "Q. I want to suggest to you, Mr Stuart-Smith, that having regard to the static dynamic factors to which I've drawn your attention in the course of this cross-examination, that to a person in the position of the driver of the truck on the day of this accident, that intersection at the corner of King and Devonshire was (1) not ambiguous. OBJECTION (STITT). QUESTION ALLOWED Q. Do you agree with that proposition, Mr Stuart-Smith? A. No, not really. I mean, I agree that the presence of the intersection shouldn't have been ambiguous. What I say is ambiguous is, it's basically - to determine priority at the intersection, one has to actually take note of the curvature of the lines. If the centre lines were straight, the priority would have been different. I mean, if the centre lines were curved, the priority is as it was supposed to be. So a driver has to actually interpret the lines as being curved. They were curved, so the correct - had they observed them properly, it would have been fine, but what I am saying is that the actual curvature is so slight that it is reasonable to expect that statistically, some drivers would interpret it in another way, and that's the ambiguity. If the centre lines are continued all the way around into Devonshire Road, not allowing any turns to head north into King Street, no ambiguity. But the fact that they had to leave this gap and that the curvature created an offset of less than a metre, relied on drivers detecting that and interpreting that correctly; and I agree that proper interpretation, proper observation, a driver should have seen and been able to work out the priority. But without that, the priority is slightly ambiguous. So that's what I say is ambiguous. It's not necessarily the presence of the intersection that's ambiguous; it's the determining priority."

160 Mr Windsor concluded his cross-examination by putting to Mr Stuart-Smith that this intersection was not "inadequate". He disagreed.

161 Mr Bailey's report contains these comments: "1) Modified Intersection warning sign (Black on Yellow W9-1L) which was located on a pole approx 85 metres from the intersection and reportedly in somewhat faded but still in reasonably legible condition. Because the Modified Intersection sign is used infrequently and differs from the frequently encountered Side Road Junction sign (W2-4), only by the (i) addition of a taper to the branch road leg and (ii) width reduction of the vertical extension, there is a real risk that the variation will not be readily perceived by drivers. The risk will be substantially increased when: s The sign is used in isolation - that is when no other indicators are reasonably detectible in the drivers field of view to indicate a critical change to traffic rules s Lighting conditions are poor, such as at night when normal fading has occurred and the sign is lit only by headlamps. Mr FINCH says that he did not see the sign at all and this may reflect either that he did not notice the sign at any time or that he had noticed a sign, but had no later recollection - in the latter case, there was the real possibility that in failing to identify the sign as a modified intersection type, its presence served to reinforce an incorrect perception that the vehicle had right of way. 2) Curving of the double unbroken centreline at the intersection. Police plan indicates that the lines curve to the west by approx 0.9m over approx the last 6 metres on the southbound approach to the intersection before breaking for a distance of approx 6 metres. The lines appear to have been in faded but serviceable condition at the time of the police attendance and their conspicuousness in Mr FINCH's field of view would depend largely on his distance from them and the range/effectiveness of his headlights. There is no realistic possibility that the slight curvature could be readily seen whilst the Modified Intersection warning sign was in sight. (Refer Figure 6) At whatever distance the centreline curvature did become visible, it is not clear that many road users would be aware of the critical change in traffic priority because (i) it is a rarely encountered traffic control device for most users and (ii) the NSW RTA handbook advice for the modified T intersections, shows the give way vehicle turning through the marked centreline and states that the continuing road (which is marked with broken white lines) goes around the corner … (see below) and (iii) in the context of a somewhat broken up, sealed road in a semi-rural area, the deflection may initially appear as simply a distortion of the road surface."

162 Mr Bailey then sets out the General Principles from AS 1742.2 of 1994 referable to traffic control devices and continued: "Critical to this intersection was AS 1742.2 advice that signs should: s Command attention s Convey a clear, simple meaning with the minimum number of messages required to obtain the desired response from the driver s Contain warning hazards which may not be self-evident The decision to modify traffic priority at the King and Devonshire Road intersection introduced a hazard which would not be self-evident to northbound drivers and it was essential that traffic control devices be used which commanded attention and conveyed the changed priority with the minimum number of messages to obtain the desired driver response. c) Because the rarely used Modified Intersection warning sign was the critical device, and it is only slightly different from the commonly used Side Road sign which conveys the opposite meaning, there was an inherent need to command driver attention to the change. As a minimum this should have included:

s Using an oversize W9-1(L) sign preferably lit by an existing streetlamp, and s Installing unidirectional hazard markers at and near the intersection per C1 3.6.7 (see below) which notes that Typical uses of these marks are … (iii) to indicate vehicle paths at intersections."

163 He then sets out a description of hazard markers which I have described above as "chevron markers", indicating with black and white chevrons the route to be taken, and continued: "Because hazard markers are reflectorized, they would be readily identified in vehicle headlamps at the time the Modified Intersection warning sign was in sight and provide enhanced recognition of the directional change and the changed priority. It was observed that hazard markers had been installed on two previous 90 o bends in King Street prior to reaching the intersection with Devonshire Road … The cost of ensuring that markings for northbound traffic were capable of fulfilling the requirements of the relevant standard was minimal and it could be anticipated that as traffic volumes increased with the transition from rural to more intensive usage, that the 'curve' would be realigned to provide adequate turn radius for heavy vehicles turning left into Devonshire Road. By increasing superelevation on the north-eastern boundary of the road, this would substantially assist vehicles during the turn whilst also elevating the (broken white line) road markings at the entrance to King Street (north) into the field of view of northbound drivers. Assuming there was only low traffic volume into King Street (North) there was no reason to put a 6 metre break in the centrelines as it is permissible to make a right turn across unbroken lines in NSW and this had the potential to provide additional warning to northbound drivers. Additional guidance to northbound drivers could have included a combination of W1-1(L) sign and speed advisory W8-2 at 25 km/hr, to indicate that drivers would have substantially reduce speed from the posted limit before making the left hand turn."

164 When giving evidence in chief Mr Bailey said this about the modified T intersection sign: "HH: Q. I myself would have difficulty interpreting the sign, even with reading glasses on, on the photographs. I think one of the problems is to working out the difference between the ordinary T intersection sign, W24, and the modified T intersection sign, the W9.1L. A. Yes, your Honour. Q. Now, at what distance - for example, it could have been a level crossing sign, which would be very easy to distinguish, but when you've got two similar sorts of signs, at what range, given normal eyesight and adequate lighting, would an adult be able to interpret the difference between similar signs like these? A. When you say to interpret the difference - there's a difficulty for me there, and could I explain what the difficulty is? Q. Yes. A. A sign doesn't just switch on. It wasn't over a crest. It simply emerges. So that a driver goes from a position at which he sees a backboard, and realises there's a sign. As he approaches this particular sign, the Modified Intersection sign, it initially appears indistinguishable from the standard T intersection. Your Honour alluded to it in - I think it's Exhibit B1. Q. Yes. A. That even under full flood lighting, with a photograph, with a static image, it's essentially indistinguishable from the standard sign. A driver who focuses their attention, focuses the central one degree, spheroidal degree, of their eyesight on something. As I look at you Honour, my one degree extends approximately to the width of your chair or a little less. And so even though I'm aware and my brain has an image of the other things in this room, I can't tell as they change because they are in peripheral vision. My visual acuity or human visual acuity reduces rapidly away from the 1 per cent so that a driver who initially identified a sign as very familiar type and then directed their attention, their foveal vision, the things that they were looking at, away from that sign, I doubt that there would be a sufficient stimulus in peripheral vision to attract attention away even forgetting the issue of expectation, that it would simply be a blur, indistinguishable in peripheral vision at all times."

165 Like Mr Stuart-Smith, Mr Bailey was cross-examined at some length by Mr Windsor, but he did not resile from the opinions expressed in his report.

166 Finally, the consideration reached in the Lighting Appraisal should be considered: "From the material examined, it is apparent the intersection at King Street and Devonshire Road has had a history of problems due to the number of accidents and complaints from the local residents in the past. Liverpool City Council was aware of these problems and in response requested that the lighting installation be upgraded on several occasions between 1991 and 2001; 1. Packet No. 5, Letter from Liverpool City Council to Prospect Electricity dated 24 January 1992 for the addition of one 80 Watt mercury vapour luminaire on King Street north of the intersection with Devonshire Road. 2. Packet No. 5, a letter dated 12 May 1999 from Liverpool City Council requested the upgrade of street lighting at King Street Rossmore by Integral Energy. The lighting category nominated by Liverpool City Council was Category B2 in accordance with AS/NZS 1158:1997. 3. Packet No. 5, Letter from Liverpool City Council to Integral Energy dated 18 July 2000 for the addition of four 80 Watt mercury vapour luminaires on King Street north of the intersection with Devonshire Road. However, no attempt was made to review the existing lighting on the approach roads and at the intersection in conjunction with the traffic control measures and advisory signs. This has resulted in numerous piecemeal lighting designs being undertaken in isolation on various parts of the surrounding roads without reference to the intersection as a whole. To compound matters, the most recent lighting designs undertaken by Integral Energy prior to the accident clearly did not comply with Category P5 to AS/NZS 1158.3.1:1999 as nominated by Liverpool City Council. Assuming the first defendant was unfamiliar with the surrounding roadways compounded by the dark surrounds and the poor road lighting installation, this would have made sighting the intersection and any conflict points on the approach to the intersection very difficult."

167 I have no hesitation in concluding that LCC, through its various traffic engineers, was negligent in failing to do in 1996 and 1998 what it did immediately after this collision in 2001. That is the opinion of Mr Jamieson. An alternative arrangement was that proposed by Mr Bailey. The minimum requirement, in light of the possible ambiguity of the modified T intersection sign, the possibility of its being misinterpreted, was the erection of Give Way signs at the intersection facing traffic facing north and the painting of a holding line at the intersection across the northbound lane of King Street. It is noteworthy that Mrs Nicholls requested a Give Way sign on 26 May 1992, Mrs Camilleri requested it on 31 October 1996 and Councillor Harrington requested it on 14 April 1998. This is not a benefit of hindsight finding, it was at least since 1994 proper road traffic engineering practice. Furthermore, a tribunal of fact is entitled to look at what was done after an accident to eliminate or minimise a risk, to see if that risk was foreseeable prior to the accident: Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214. The street lighting north of the intersection increased the need to adopt additional measures to reinforce in a motorist's mind that priority at this T intersection had been modified. Merely adjusting the line marking to comply with the diagram for Australian Road Rule 73(5) or painting the line over the gap left in it, as suggested by Mr Bailey, would be insufficient because of problems with lighting of the intersection at night and cars travelling with headlights on low beam with, effectively, only 50m forward vision would not see the line marking in adequate time, as the experts suggest. Signs were called for and, the cost of those was minimal. The problem with the intersection is highlighted in two illustrations in Mr Bailey's report, Figures 5 and 6. Figure 5 is a view northwards towards the intersection taken before the 'Give Way Sign Ahead' sign taken after the works of 2001 were completed. The photograph was taken at night from a sedan travelling with headlights on low beam. Mr Bailey acknowledges in his report that there are limitations with such a photograph, but it is indicative. Figure 6 is the same photograph with some visual stimuli removed, to seek to replicate the view that Mr Finch would have had on the evening of the collision. However, Figure 6 still shows the extra large 'No Through Road' sign erected after the collision and the yellow high-pressure sodium luminaire installed after the collision. Accepting the limitations of the photographs and noting that it has visual stimuli in it different to those confronted by Mr Finch, Figure 6 is in itself telling evidence of very poor traffic engineering.

168 Having concluded that both Mr Finch and LCC were negligent, it is necessary to apportion liability between them. I must firstly deal with two submissions that were put to me by Counsel for LCC.

169 The first of those submissions was that, as far as Mr Finch as plaintiff was concerned, LCC owed him no duty of care as he was himself negligent. Counsel relied on [160] in the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 580: "In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness' (345), a proper starting point may be the proposition that the persons using the road will themselves take ordinary care (346)."

I find it exceedingly strange that Counsel for LCC did not refer me to Liverpool City Council v Millet [2004] NSWCA 340; 43 MVR 193. Even if Counsel were unaware of it, his client would have been. In that matter an offset head on collision occurred between Millet's vehicle being driven north on Second Avenue, West Hoxton and Wade's vehicle being driven south on Second Avenue. The collision was at the intersection of Second Avenue and Sixteenth Avenue, which was on a crest. There was no centreline on Second Avenue. Millet had strayed partially onto the incorrect side of the carriageway. Millet did not see the oncoming lights of Wade's car. Norrish QC, J held that LCC was negligent in failing to mark a centreline along Second Avenue at this intersection, in areas approaching the crest. The majority (Tobias JA with whom Mason P agreed), after considering the case law, concluded that Millet's negligence did not mean that LCC owed him no duty of care, it amounted only to contributory negligence. Factually, the present matter is analogous and this decision of the Court of Appeal is binding, I must reject this submission.

170 The other submission put to me is that in apportioning liability I should take into account questions in relation to quantum.

171 Mr Windsor pointed out that damages payable by his client are governed by the Civil Liability Act 2002 and damages payable by Mr Finch are governed by the Motor Accidents Compensation Act 1999 and that, for example, the quantum of general damages is larger under the former Act than under the latter Act.

172 Contribution between tortfeasors is governed by the Law Reform (Miscellaneous Provisions) Act 1946 s. 5.

Subsection (2) provides: "In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and reasonable having regard to the extent of the person's responsibility for the damage : and the Court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity" [my emphasis]

173 This provision governs apportionment to the first five actions. The sixth action, Mr Finch's claim against LCC, is governed by the Law Reform (Miscellaneous Provisions) Act 1965 s. 9.

Subsection (1) provides: "If a person (the claimant ) suffers damage as a result partly of the claimant ' s failure to take reasonable care ( contributory negligence ) and partly of the wrong of any other person: (a) a claim in respect of the damage is not deflected by reason of the contributory negligence of the claimant, and (b) the damages recoverable in respect of the wrong are to be reduced to such extent as the Court thinks just and equitable having regard to claimant's share in the responsibility for the damage ." [my emphasis]

174 The test in each provision is the same. They require me to apportion in accordance with the person's "responsibility for the damage", not in accordance with the person's liability for payment of monetary compensation. This is made clear in the judgment of Hayne J (with whom Gaudron, McHugh, Gummow and Kirby JJ concurred) in Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 68 when discussing the latter provision: "No doubt the making of the apportionment which the legislation requires involves comparison of culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable, but that is not the only element to be considered. Regard must be had to the 'relative importance of the acts of the parties in causing the damage' and it is 'the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination' (italics added)."

His Honour was quoting from Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492. The same point is clear from [124] to [128] of the judgment of Kirby J in Josyln v Berryman [2003] HCA 34. I therefore reject this submission by LCC.

175 Furthermore, it must be remembered that there are, in this State, a number of different ways of assessing damages, each of which ends up providing a different monetary amount: (i) the Common Law, (ii) Motor Vehicle Law (2 regimes) (iii) Workers Compensation Law (2 regimes), and (iv) Civil Liability Act 2002

One would think that if this point were arguable, it would have been argued, and settled, at some time prior to this.

176 I turn now to apportionment. Mr Jamieson commented on this in his second report (22 October 2004) in which he said: "In summary, all crashes are the outcome of a combination of: s road elements, s vehicle elements and s driver elements If one or more of the elements was eliminated or rectified, then the crash would probably not have occurred. In this instance, the crash almost certainly occurred as a combination of the poorly designed and ambiguous intersection warning and signposting, with the excessive speed of the truck driver. It should be noted however, that had the intersection been signposted and delineated as it is now, then the truck driver would not have been approaching at such an excessive speed in any case."

177 In this matter there is no relevant "vehicle element". I have already excluded "speed" as a relevant factor in this collision but I have found two "driver elements", Mr Finch's failure to observe the modified T intersection sign and his steering his truck onto the incorrect side of the carriageway. It is those two culpable elements that must be weighed with the "road elements", the culpability of LCC. Mr Stitt QC submitted that the risk caused by the acts and omissions of LCC was "serious, obvious and manifest". I adopt that submission. LCC had a duty to consider all users of this intersection, both "locals" and complete strangers to it, both light and heavy vehicle drivers, both by day and at night. Here the evidence establishes that the Council failed to properly exercise that duty to strangers to the intersection by day, and, more acutely, at night. The Council knew about the problems with the intersection, Mr Finch did not. As Mr Russell SC so pithily observed the Council had 9 years to "get this intersection right", Mr Finch had but a few seconds in which to do so. In my view, the culpability of the Council far exceeds that of Mr Finch. Mr Stitt QC submitted that the level of culpability of Mr Finch was "less than 10 per cent". Mr Semmler QC submitted that an appropriate apportionment was 20 per cent to Mr Finch and 80 per cent to LCC. The apportionment suggested by Mr Semmler QC is, in my view, appropriate and adequately reflects a just, equitable and reasonable weighing of the relevant culpabilities. I therefore apportion liability 20 per cent to Mr Finch and 80 per cent to LCC.

178 Matter No: 1042/04 Plaintiff : Estephan Estephan 1. Verdict for the Plaintiff against the Defendants for damages to be assessed. 2. Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed. 3. Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant. 4. Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim. 5. Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed.

179 Matter No: 2124/04 Plaintiff : Charlene Estephan 1. Verdict for the Plaintiff against the Defendants for damages to be assessed. 2. Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed. 3. Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant. 4. Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim. 5. Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed.

180 Matter No: 2125/04 Plaintiff : Joanne Estephan 1. Verdict for the Plaintiff against the Defendants for damages to be assessed. 2. Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed. 3. Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant. 4. Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim. 5. Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed.

181 Matter No: 2126/04 Plaintiff : Joseph Azzi 1. Verdict for the Plaintiff against the Defendants for damages to be assessed. 2. Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed. 3. Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant. 4. Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim. 5. Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed.

182 Matter No: 2127/04 Plaintiff : Mary Azzi 1. Verdict for the Plaintiff against the Defendants for damages to be assessed. 2. Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed. 3. Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant. 4. Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim. 5. Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed.

183 Matter No: 3797/04 Plaintiff : Lynsey Finch 1. Verdict for the Plaintiff against the Defendant for 80 per cent of damages to be assessed. 2. Judgment for the Cross Defendant against the Cross Claimant. 3. Order the Cross Claimant to pay the Cross Defendant's costs.

184 In each matter, I grant liberty to the parties to apply on 7 day's notice for any special costs orders including, if sought, an order for the interim assessment of costs.

185 Messrs Carrol and O'Dea for the plaintiffs in the first five matters. Messrs Michael Jokovic and Associates for the plaintiff in the sixth matter. Messrs Sparke Helmore for the first and second defendants in the first five matters. Messrs McCabe Terrill for Liverpool City Council. Messrs TL Lawyers for the estate of the late Jocelyn Estephan.

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